The Twisted Career of the term "Liberty Interest" Gets Twistier Still in Dep't of State v. Muñoz

There are three main branches of Supreme Court jurisprudence construing the Due Process Clauses of the 5th and 14th Amendments. In one branch, the 14th Amendment Due Process Clause incorporates--that is, makes applicable against state and local governments--most of the provisions of the Bill of Rights. In another branch, both Due Process Clauses are the grounds for unenumerated rights, such as the right to use contraception, the right to marry, and the right to make decisions about one's children's education. Although that second branch--called substantive due process--has long been controversial, Justice Alito's majority opinion in Dobbs v. Jackson Women's Health Org. asserted that the non-abortion-related substantive due process cases remain good law. Third, many cases under both Due Process Clauses recognize that when the government deprives someone of life, liberty, or property, it must provide fair procedures, what the case law calls procedural due process.

In today's essay, I'll discuss how Justice Barrett's majority opinion last week in Dep't of State v. Muñoz confusingly conflated substantive and procedural due process. However, she was not the first Justice to do so. It would thus be more accurate to say that she further confused these two doctrines.

Let's begin with the conventional account of the difference between procedural due process (PDP) and substantive due process (SDP). One can have an interest in liberty that suffices to trigger procedural protections without that interest rising to the level of a fundamental right for SDP purposes. (The same is true for life and property, but the Muñoz case involves liberty, so I'll focus only on liberty.)

Many of the PDP cases in the Supreme Court involve incarcerated persons who are being transferred from one form of detention to another, harsher, form of detention. These persons do not assert that the state may not subject anyone to the harsher form of detention, nor even--as they would have to assert in a SDP case--that the state must satisfy strict scrutiny in order to place someone in the harsher form of detention. That is, they do not assert a SDP fundamental right to avoid the harsher form of detention. What they say is that their liberty will be infringed in the harsher form of detention and that therefore the government must provide fair procedures to ensure that the harsher form of detention is warranted according to whatever the relevant substantive criteria are. At the threshold, they must establish what the cases call a "liberty interest" in avoiding the transfer; if they can do so, the next step is an evaluation of the fairness of the procedures in light of the interests at stake.

SCOTUS cases before 1989 used the term "liberty interest" almost exclusively to refer to the threshold criterion in PDP liberty cases. By contrast, they used the term "fundamental right" or "unenumerated right" or sometimes "privacy right" to refer to SDP rights. Then, in Webster v. Reproductive Health Services (1989), Chief Justice Rehnquist confusingly used the term "liberty interest" in a SDP case. He did so, I believe, because he was trying to overrule Roe v. Wade, which had recognized a fundamental right to abortion. By saying that women seeking abortions in Webster had a mere "liberty interest" in those abortions, CJ Rehnquist meant to indicate that so long as the state provides fair procedures for determining whether someone meets the state-mandated substantive criteria for obtaining an abortion, it satisfies the Constitution.

The key language appeared in part II.D of CJ Rehnquist's opinion in Webster, which garnered only a plurality, not a majority. That's why you first heard that Roe v. Wade was overruled in 2022, not 1989. An odd twist followed Webster, however. The two Justices who joined part II.D of CJ Rehnquist's Webster opinion were Justices White (who, along with then-Justice Rehnquist, had dissented in Roe itself) and Kennedy. But even though Justice Kennedy joined the portions of Webster that seemingly would have overruled Roe, in 1992 Justice Kennedy, along with Justices O'Connor and Souter, co-authored the lead opinion in Planned Parenthood v. Casey, reaffirming what the opinion called the "central holding" of Roe. Perhaps in recognition of the fact that only three years earlier Justice Kennedy had joined an opinion that used the term "liberty interest" in an abortion case, the Casey joint opinion also used the term liberty interest--but now it did so in a way that clearly signaled that abortion remained a SDP right. At least in SDP cases, "liberty interest" had become a synonym for what theretofore had been called a "fundamental right."

As an aside, I should acknowledge that following Casey, there was a body of scholarship arguing that abortion was no longer a fundamental right. Most of that scholarship was based on the fact that the Court had substituted the "undue burden" test for strict scrutiny of abortion regulations. I thought that the scholars who read Casey in this way were mistaken, but we need not dwell on that point. Even those scholars who thought abortion had been demoted still recognized that abortion was protected by SDP and not merely PDP. They simply thought that post-Casey abortion was a kind of second-class SDP right. We can put that point aside and return to the main issue.

Confusingly, even after the Court started referring to SDP rights as liberty interests, it continued to use the term liberty interest in its PDP cases as it had traditionally done: as a threshold requirement for evaluating the fairness of the procedures used to deprive someone of the putative liberty interest. To take a dramatic example, in Hamdi v. Rumsfeld, Justice O'Connor's plurality opinion began by recognizing that Hamdi asserted "the most elemental of liberty interests"--in freedom from executive detention--before going on to find that the Bush administration's system for determining whether detainees were enemy combatants did not satisfy PDP.

Now fast-forward to last week's Muñoz decision. Muñoz is a U.S. citizen. Her husband Luis Asencio-Cordero is not. When he sought a visa to enter the country to be with her, the State Department denied him entry without providing an explanation beyond a naked citation of 8 U.S.C. § 1182(A)(3)(a)(ii). That provision renders non-citizens inadmissible to the U.S. if the deciding consular or other government official "knows, or has reasonable ground to believe" that the non-citizen "seeks to enter the United States to engage solely, principally, or incidentally in any . . . unlawful activity."

A line of cases makes inadmissibility decisions non-reviewable where challenged by the excluded non-citizen but allows for limited review "when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen." Muñoz challenged the denial of her husband's visa under this line of cases. She said that, in the absence of a reasoned explanation beyond the naked citation of a statutory provision, the visa denial to Ascencio-Cordero violated her rights.

What rights? Ah, that's where things get very confusing. Justice Barrett for the majority treated Muñoz's complaint as relying on the SDP right to marry--which, at least for now anyway, is one of the SDP rights that Dobbs does not disturb. However, Justice Barrett said, the right to marry does not include a right to a reasoned explanation for the exclusion of one's non-citizen spouse. She cited the test from Washington v. Glucksberg that was applied in Dobbs (even though the Court had limited the scope of the Glucksberg test in pre-Dobbs cases like Obergefell v. Hodges): to establish a SDP right, one must show that the right is "deeply rooted in this Nation's history and tradition." And then the core of Justice Barrett's opinion was devoted to showing that, in light of the long history of government plenary power over which non-citizens (including spouses of citizens) get to enter the country, Muñoz could not satisfy that requirement.

But was Muñoz really asserting a SDP right? Justice Barrett at one point seemed a bit unsure. She wrote: "It is difficult to pin down the nature of the right Muñoz claims." She then quoted the characterization of the right in Muñoz's brief: a "marital right . . . sufficiently important that it cannot be unduly burdened without procedural due process as to an inadmissibility finding that would block her from residing with her spouse in her country of citizenship." Justice Barrett went on to say that this is a unique anomaly: "a substantive due process right that gets only procedural due process protection." Even if such an anomaly exists, however, the majority opinion said that Muñoz loses because she fails Glucksberg's deeply-rooted-in-history-and-tradition test. In other words, Justice Barrett said that the Court won't recognize the hybrid SDP/PDP right because it fails the SDP test.

With due respect, that's a mess. Admittedly, some of the blame for the mess belongs on the shoulders of Chief Justice Rehnquist for his original sin of muddying up the distinction between SDP fundamental rights and PDP liberty interests. And some of the blame rests with Muñoz's lawyers, who could have been clearer that, in addition to whatever hybrid claim they were making, they were also making a straightforward PDP claim: if the government is going to deprive someone of the liberty interest in residing with their spouse, it should use minimally fair procedures, which include, at a minimum, an explanation of the reason for the deprivation.

But the balance of the blame for the confusion falls squarely on the shoulders of the majority. If it wanted to, the Court could have denied Muñoz's claim straightforwardly enough in any of three ways.

(1) Justice Barrett could have said that the narrow exception to non-reviewability of entry decisions with respect to non-citizens exists only where the visa denial burdens the substantive rights of a U.S. citizen. After all, the leading cases in this line are Kleindienst v. Mandel--which involved a free speech claim--and Trump v. Hawaii--which involved a claim of religious discrimination. In this approach, the Court would have (correctly) treated Muñoz's claim as a PDP claim but then issued a narrow opinion saying that PDP claims don't fit within the narrow Kleindienst exception to non-reviewability.

(2) If the Court didn't want to say that, it could have relied on the case that most closely parallels Muñoz: Kerry v. Din. There, Justice Scalia's plurality opinion (for himself, Chief Justice Roberts, and Justice Thomas) engaged in the same confusion of SDP and PDP liberty as Justice Barrett did in Muñoz. But to get to five votes, they needed a concurrence in the judgment by Justice Kennedy, joined by Justice Alito; they said that citation of a Code section satisfies PDP. The Court in Muñoz could have adopted the Kennedy/Alito position from Din. That too would have been a narrow holding without implications beyond the border entry context.

(3) Or more straightforwardly still, the Muñoz Court could have gone the route advocated by Justice Gorsuch in his concurrence in the judgment. He said that what Muñoz wanted was an explanation from the government, but by now she had one: her husband was denied a visa because the State Department officials believed that he was affiliated with the MS-13 gang based on his tattoos. Hence, Justice Gorsuch thought there was nothing further to resolve. In dissent, Justice Sotomayor, joined by Justices Kagan and Jackson, agreed, but for technical reasons concerning the procedural posture of the case in the lower courts, she thought it necessary to vacate and remand rather than reverse.

Justice Barrett's opinion doesn't do any of those things. Instead, it compounds the conflation of SDP and PDP by seeming to require that even in a PDP case, a claimant must, at the threshold, establish not merely a liberty interest in the relatively minimal sense necessary to trigger procedural protection, but show that the asserted liberty interest meets the more demanding deeply-rooted-in-history-and-tradition requirement for SDP rights. The mess that Chief Justice Rehnquist created in Webster for the purpose of demoting SDP rights has now made it harder to successfully assert a PDP right.

Hold on. Was Muñoz really asserting a PDP right? Yes, she was. Take a look again at the language Justice Barrett quoted from Muñoz's brief. It claimed a "marital right . . . sufficiently important that it cannot be unduly burdened without procedural due process as to an inadmissibility finding that would block her from residing with her spouse in her country of citizenship." I'm not sure what the lawyers meant by this, but it is most charitably read as a PDP claim. Justice Barrett presumably thought the claim had an SDP dimension because of the "sufficiently important" language, which could imply a substantive right. But that's not the most natural reading. Under the Court's leading PDP precedent--Mathews v. Eldridge--the question whether any set of procedures satisfies due process in any particular circumstances requires a weighing of (1) the interest at stake and (2) the risk of an erroneous deprivation against (3) the burden on the government and other interests of the procedures sought. The "sufficiently important" language in Muñoz's brief should have been read as invoking the first factor in the Mathews test.

If there is a silver lining in Justice Barrett's majority opinion, it is that she did not read Muñoz as raising a pure PDP claim but a hybrid. In some future case when the government cites Muñoz for the proposition that to make out a successful PDP claim, a claimant must, at the threshold, satisfy the Glucksberg test for a fundamental liberty, the Court can and should hold that Muñoz applies only to hybrid claims and not to conventional PDP claims. Unfortunately, until that happens, there is a risk that Muñoz will lead to confusion and even mischief in the lower courts, especially by judges eager to deny all manner of due process claims.