Lost in the shuffle of Supreme Court decisions at the end of this term is one that rolls back rights for undocumented spouses of American citizens, wrote Ahilan Arulanantham for Slate on Wednesday — and it is particularly cruel in how it weaponizes history to do so.
The case, Department of State v. Muñoz, concerns an undocumented Salvadoran man married to a lawyer in Southern California, who, upon traveling back to his home country as part of the process to apply for citizenship, was arbitrarily denied by a consular official who incorrectly thought his tattoos were gang symbols — leaving their family split and forcing the wife to either move to El Salvador or let her children grow up without their father.
The Ninth Circuit Court of Appeals ruled the family was entitled to a reasonable explanation for the denial — but it was appealed and, on the advice of the State Department, the Supreme Court reversed the decision, rolling back due process rights for all families with an undocumented spouse.
The irony is that all of this comes at the same moment the Biden administration has introduced new rules to streamline the process of applying for citizenship for over 500,000 undocumented spouses, eliminating some of the steps families like this had to follow in the first place — even as administration officials argued on the other side to the Supreme Court.
"Muñoz provides a clear example of how the conservative supermajority’s focus on history allows it to rely on sexist and racist traditions to uphold all kinds of oppressive legal regimes today," wrote Arulanantham. "And it also tells us something about the Biden administration, as it highlights the ongoing tension in the administration’s immigration policies that both protect and undermine family unity at the same time."
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This "predictably awful decision," he continued, saw the court's six right-wing justices rely on a selective version of originalism to focus on the ways the U.S. government has restricted immigration previously — even when those ways are egregiously discriminatory.
"The Supreme Court considered several constitutional immigrants’rightscases when Justice Anthony Kennedy was at the court’s center, and it was generally not willing to reaffirm the most draconian immigration law precedents from the Chinese Exclusion Act and Cold War eras, creating hope among scholars that constitutional immigration law could still some day be brought at least into the 20th century, if not the 21st," he wrote.
But Muñoz marks at least the second case since Justice Amy Coney Barrett joined the court where it has offered a full-throated defense of the most draconian immigration cases from our nation’s dark past, once again going further to restrict immigrants’ rights than the court had been willing to go just a few years ago."