NOTICE: This opinion is subject to
formal revision before publication in the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 23–334

															_________________

															Department of State, et al., PETITIONERS v. Sandra MuÑoz, et al.

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 21, 2024]

															Justice Barrett delivered the opinion of the
Court.

															Luis Asencio-Cordero seeks to enter the United
States to live with Sandra Muñoz, his wife. To obtain the necessary
visa, he submitted an application at the United States consulate in
San Salvador. A consular officer denied his application, however,
after finding that Asencio-Cordero is affiliated with MS–13, a
transnational criminal gang. Because of national security concerns,
the consular officer did not disclose the basis for his decision.
And because Asencio-Cordero, as a noncitizen, has no constitutional
right to enter the United States, he cannot elicit that information
or challenge the denial of his visa.

															Muñoz, on the other hand, is a citizen, and she
filed her own challenge to the consular officer’s decision. She
reasons as follows: The right to live with her noncitizen spouse in
the United States is implicit in the “liberty” protected by the
Fifth Amendment; the denial of her husband’s visa deprived her of
this interest, thereby triggering her right to due process; the
consular officer violated her right to due process by declining to
disclose the basis for finding Asencio-Cordero inadmissible; and
this, in turn, enables judicial review, even though visa denials
are ordinarily unreviewable by courts.

															Muñoz’s argument fails at the threshold. Her
argument is built on the premise that the right to bring her
noncitizen spouse to the United States is an unenumerated
constitutional right. To establish this premise, she must show that
the asserted right is “ ‘deeply rooted in this Nation’s
history and tradition.’ ” Washington v. Glucksberg , 521 U.S.
702 , 720–721 (1997). She cannot make that showing. In fact,
Congress’s longstanding regulation of spousal immigration—including
through bars on admissibility—cuts the other way.

															I

															A

															To be admitted to the United States, a
noncitizen typically needs a visa. 66Stat. 181, 8
U. S. C. §1181(a). Visa decisions are made by the
political branches. Trump v. Hawaii , 585 U.S. 667,
702–703 (2018); see also Oceanic Steam Nav. Co. v. Stranahan , 214 U.S.
320 , 339 (1909) (explaining that “over no conceivable subject
is the legislative power of Congress more complete”). As a general
matter, Congress sets the terms for entry, and the Department of
State implements those requirements at United States Embassies and
consulates in foreign countries.[ 1 ]

															Congress has streamlined the visa process for
noncitizens with immediate relatives in the United States. The
citizen-relative must first file a petition with U. S.
Citizenship and Immigration Services (USCIS), an agency housed
within the Department of Homeland Security, to have the noncitizen
classified as an immediate relative. See Scialabba v. Cuellar de Osorio , 573 U.S.
41 , 46–47 (2014) (plurality opinion); §§1151(b)(2)(A)(i),
1154(a)(1)(A). If USCIS approves the petition, then the noncitizen
may apply for a visa. §§1201(a), 1202(a). As part of this process,
the noncitizen submits written materials and interviews with a
consular officer abroad. §§1201(a)(1), 1202.

															Ordinarily, a consular officer who denies a visa
application “because the officer determines the alien to be
inadmissible” must “provide the alien with a timely written notice
that . . . (A) states the determination, and (B) lists
the specific provision or provisions of law under which the alien
is inadmissible.” §1182(b)(1). The statute requires no explanation,
however, “to any alien inadmissible” on certain grounds related to
crime and national security. §1182(b)(3). This case involves a
noncitizen to whom this statutory exception applies.

															B

															Sandra Muñoz, an American citizen, married
Luis Asencio-Cordero, a Salvadoran citizen, in 2010. Several years
later, the couple began taking steps to obtain an immigrant visa
for Asencio-Cordero. Muñoz filed a petition to classify her husband
as an immediate relative, which USCIS granted. §§1151(b)(2)(A)(i),
1154(a)(1)(A). Because Asencio-Cordero had entered the United
States unlawfully, he was required to return to El Salvador and
submit his visa application at a consulate there. See §§1154(b),
1202; 22 CFR §42. He met with a consular officer in San Salvador
and underwent several interviews.

															In December 2015, the officer denied
Asencio-Cordero’s application, citing 8 U. S. C.
§1182(a)(3)(A)(ii). That provision renders inadmissible a
noncitizen whom the officer “knows, or has reasonable ground to
believe, seeks to enter the United States to engage solely,
principally, or incidentally in” certain specified offenses or “any
other unlawful activity.” Ibid . The officer provided no
additional details—but, given the reason for the visa denial, even
the statutory citation was more information than Asencio-Cordero
was entitled to receive. §1182(b)(3).

															Asencio-Cordero guessed (as it turns out,
accurately) that he was denied a visa based on a finding that he
was a member of MS–13, a transnational criminal gang. He also
guessed (again, accurately) that this finding was based at least in
part on the conclusion that his tattoos signified gang membership.
Asencio-Cordero and Muñoz denied that Asencio-Cordero was
affiliated with MS–13 or any other gang, and they pressed the
consulate to reconsider the officer’s finding. When the consulate
held firm, they appealed to the Department of State, submitting
evidence that the tattoos were innocent. A Department official
informed Asencio-Cordero and Muñoz that the Department agreed with
the consulate’s determination. The next day, the consul in San
Salvador notified them that Asencio-Cordero’s application had gone
through multiple rounds of review—including by the consular
officer, consular supervisors, the consul himself, the Bureau of
Consular Affairs, and the State Department’s Immigration Visa
Unit—and none of these reviews had “ ‘revealed any grounds to
change the finding of inadmissibilty.’ ” App. 7.

															Asencio-Cordero and Muñoz sued the Department of
State, the Secretary of State, and the United States consul in San
Salvador. (For simplicity’s sake, we will refer to the defendants
collectively as the State Department.) They alleged, among other
things, that the State Department had abridged Muñoz’s
constitutional liberty interest in her husband’s visa application
by failing to give a sufficient reason why Asencio-Cordero is
inadmissible under the “unlawful activity” bar.

															The District Court agreed and ordered discovery.
In a sworn declaration, an attorney adviser from the State
Department explained that Asencio-Cordero was deemed inadmissible
because he belonged to MS–13. The finding was “based on the
in-person interview, a criminal review of . . .
Asencio[-]Cordero, and a review of [his] tattoos.” App. to Pet. for
Cert. 124a. In addition to the affidavit, the State Department
provided the District Court with confidential law enforcement
information, which it reviewed in camera , identifying
Ascencio-Cordero as a member of MS–13. Satisfied, the District
Court granted summary judgment to the State Department.

															The Ninth Circuit vacated the judgment and
remanded the case. Consistent with circuit precedent, it held that
Muñoz, as a citizen, had a constitutionally protected liberty
interest in her husband’s visa application. Because of that
interest, the Ninth Circuit said, the Due Process Clause required
the State Department to give Muñoz a “ ‘facially legitimate
and bona fide reason’ ” for denying her husband’s visa. 50
F. 4th 906, 916 (2022) (quoting Kleindienst v. Mandel , 408 U.S.
753 , 766–770 (1972)). The initial statutory citation did not
qualify, 50 F. 4th, at 917–918, and the later affidavit was
untimely, id ., at 921–922. Delay carried a serious
consequence for the State Department. Visa denials are insulated
from judicial review by the doctrine of consular nonreviewability.
But the Ninth Circuit held that by declining to give Muñoz more
information earlier in the process, the State Department had
forfeited its entitlement “to shield its visa decision from
judicial review.” Id ., at 924. The panel remanded for the
District Court to consider the merits of Muñoz’s suit, which
include a request for a declaration invalidating the finding that
Asencio-Cordero is inadmissible and an order demanding that the
State Department readjudicate Asencio-Cordero’s
application.[ 2 ]

															The Ninth Circuit denied en banc review over the
dissent of 10 judges, and we granted the State Department’s
petition for certiorari. 601 U. S. ___ (2024).[ 3 ]

															II

															“For more than a century, this Court has
recognized that the admission and exclusion of foreign nationals is
a ‘fundamental sovereign attribute exercised by the Government’s
political departments largely immune from judicial control.’ ” Trump , 585 U. S., at 702 (quoting Fiallo v. Bell , 430 U.S.
787 , 792 (1977)). Congress may delegate to executive officials
the discretionary authority to admit noncitizens “immune from
judicial inquiry or interference.” Harisiades v. Shaughnessy , 342 U.S.
580 , 588–591 (1952). When it does so, the action of an
executive officer “to admit or to exclude an alien” “is final and
conclusive.” United States ex rel. Knauff v. Shaughnessy , 338 U.S.
537 , 543 (1950); see also Dept. of Homeland Security v. Thuraissigiam , 591 U.S. 103, 138–139 (2020); Mandel ,
408 U. S., at 765–766; Nishimura Ekiu v. United
States , 142 U.S.
651 , 659–660 (1892). The Judicial Branch has no role to play
“unless expressly authorized by law.” Knauff , 338
U. S., at 543. The Immigration and Nationality Act (INA) does
not authorize judicial review of a consular officer’s denial of a
visa; thus, as a rule, the federal courts cannot review those
decisions.[ 4 ] This principle is
known as the doctrine of consular nonreviewability.

															We have assumed that a narrow exception to this
bar exists “when the denial of a visa allegedly burdens the
constitutional rights of a U. S. citizen.” Trump , 585
U. S., at 703. In that event, the Court has considered whether
the Executive gave a “ ‘facially legitimate and bona fide
reason’ ” for denying the visa. Kerry v. Din , 576 U.S.
86 , 103–104 (2015) (Kennedy, J., concurring in judgment)
(quoting Mandel , 408 U. S., at 770). If so, the inquiry
is at an end—the Court has disclaimed the authority to “ ‘look
behind the exercise of that discretion,’ ” much less to
balance the reason given against the asserted constitutional right. Din , 576 U. S., at 104.

															Asencio-Cordero cannot invoke the exception
himself, because he has no “constitutional right of entry to this
country as a nonimmigrant or otherwise.” Mandel , 408
U. S., at 762. Thus, so far as Asencio-Cordero is concerned,
the doctrine of consular nonreviewability applies. Muñoz, however,
is an American citizen, and she asserts that the denial of her
husband’s visa violated her constitutional rights, thereby
enabling judicial review. Specifically, she argues that the State
Department abridged her fundamental right to live with her spouse
in her country of citizenship—and that it did so without affording
her the fair procedure guaranteed by the Fifth Amendment.

															The Ninth Circuit is the only Court of Appeals
to have embraced this asserted right—every other Circuit to
consider the issue has rejected it.[ 5 ] See Colindres v. U. S. Dept. of
State , 71 F. 4th 1018, 1021 (CADC 2023); Baaghil v. Miller , 1 F. 4th 427, 433 (CA6 2021); Bakran v. Secretary, U. S. Dept. of Homeland Security , 894 F.3d
557, 564 (CA3 2018); Bright v. Parra , 919 F.2d 31, 34
(CA5 1990) ( per curiam ); Burrafato v. U. S. Dept. of State , 523 F.2d 554, 554–557 (CA2 1975); Silverman v. Rogers , 437 F.2d 102, 107 (CA1 1970). In Din , this Court considered but did not resolve the question.
A plurality concluded that a citizen does not have a fundamental
right to bring her noncitizen spouse to the United States. 576
U. S., at 96. Two Justices chose not to reach the issue,
explaining that even if the right existed, the statutory citation
provided by the Executive qualified as a facially legitimate and
bona fide reason. Id . , at 105 (opinion of
Kennedy, J.). Since Din , the existence of the right has
continued to divide the Circuits.

															Today, we resolve the open question. Like the Din plurality, we hold that a citizen does not have a
fundamental liberty interest in her noncitizen spouse being
admitted to the country.

															III

															The Due Process Clause of the Fifth Amendment
requires the Government to provide due process of law before it
deprives someone of “life, liberty, or property.” Under our
precedent, the Clause promises more than fair process: It also
“provides heightened protection against government interference
with certain fundamental rights and liberty interests.” Glucksberg , 521 U. S., at 720. When a fundamental right
is at stake, the Government can act only by narrowly tailored means
that serve a compelling state interest. Id ., at 721.
Identifying unenumerated rights carries a serious risk of judicial
overreach, so this Court “exercise[s] the utmost care whenever we
are asked to break new ground in this field.” Id ., at 720
(internal quotation marks omitted). To that end, Glucksberg ’s two-step inquiry disciplines the substantive
due process analysis. First, it insists on a “careful description
of the asserted fundamental liberty interest.” Id ., at 721
(internal quotation marks omitted). Second, it stresses that “the
Due Process Clause specially protects” only “those fundamental
rights and liberties which are, objectively, deeply rooted in this
Nation’s history and tradition.” Id ., at 720–721 (internal
quotation marks omitted).

															We start with a “careful description of the
asserted fundamental liberty interest.” Id ., at 721
(internal quotation marks omitted). Muñoz invokes the “fundamental
right of marriage,” but the State Department does not deny that
Muñoz (who is already married) has a fundamental right to marriage.
Muñoz claims something distinct: the right to reside with her
noncitizen spouse in the United States . That involves more than
marriage and more than spousal cohabitation—it includes the right
to have her noncitizen husband enter (and remain in) the United
States.

															It is difficult to pin down the nature of the
right Muñoz claims. The logic of her position suggests an
entitlement to bring Asencio-Cordero to the United States—how else
could Muñoz enjoy the asserted right to live with her noncitizen
husband in her country of citizenship? See also Brief for
Petitioners 23, n. 8 (characterizing Muñoz’s claim as an
“entitle[ment] to the visa itself ”). Yet Muñoz disclaims that
characterization, insisting that “[she] does not advance a
substantive right to immigrate one’s spouse.” Brief for Respondents
19, n. 10. This concession is wise, because such a claim would
ordinarily trigger strict scrutiny—and it would be remarkable to
put the Government to the most demanding test in constitutional law
in the field of immigration, an area unsuited to rigorous judicial
oversight. Fiallo , 430 U. S., at 792 (“Our cases ‘have
long recognized the power to expel or exclude aliens as a
fundamental sovereign attribute exercised by the Government’s
political departments largely immune from judicial
control’ ”).

															Though understandable, Muñoz’s concession makes
characterizing the asserted right a conceptually harder task. Here
is her formulation: 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.” Brief for
Respondents 19, n. 10. So described, the asserted right is
neither fish nor fowl. It is fundamental enough to be implicit in
“liberty;” but, unlike other implied fundamental rights, its
deprivation does not trigger strict scrutiny. See Din , 576
U. S., at 99 (plurality opinion) (observing that this argument
posits “two categories of implied rights protected by the Due
Process Clause: really fundamental rights, which cannot be taken
away at all absent a compelling state interest; and not-so-
fundamental rights, which can be taken away so long as procedural
due process is observed”). This right would be in a category of
one: a substantive due process right that gets only procedural due
process protection. Ibid .

															We need not decide whether such a category
exists, because Muñoz cannot clear the second step of Glucksberg ’s test: demonstrating that the right to bring a
noncitizen spouse to the United States is “ ‘deeply rooted in
this Nation’s history and tradition.’ ” 521 U. S., at
721. On the contrary, the through line of history is recognition of
the Government’s sovereign authority to set the terms governing the
admission and exclusion of noncitizens. And Muñoz points to no
subsidiary tradition that curbs this authority in the case of
noncitizen spouses.

															From the beginning, the admission of noncitizens
into the country was characterized as “of favor [and] not of
right .” J. Madison, Report of 1800 (Jan. 7, 1800), in 17 Papers
of James Madison 319 (D. Mattern, J. Stagg, J. Cross, & S.
Perdue eds. 1991) (emphasis added); see also 2 Records of the
Federal Convention of 1787, p. 238 (M. Farrand ed. 1911)
(recounting Gouverneur Morris’s observation that “every Society
from a great nation down to a club ha[s] the right of declaring the
conditions on which new members should be admitted”); Debate on
Virginia Resolutions, in The Virginia Report of 1799–1800,
p. 31 (1850) (“[B]y the law of nations, it is left in the
power of all states to take such measures about the admission of
strangers as they think convenient”). Consistent with this view,
the 1798 Act Concerning Aliens gave the President complete
discretion to remove “all such aliens as he shall judge dangerous
to the peace and safety of the United States.” 1Stat. 571 (emphasis
deleted). The Act made no exception for spouses—or, for that
matter, other family members.

															The United States had relatively open borders
until the late 19th century. But once Congress began to restrict
immigration, “it enacted a complicated web of regulations that
erected serious impediments to a person’s ability to bring a spouse
into the United States.” Din , 576 U. S., at 96
(plurality opinion). One of the first federal immigration statutes,
the Immigration Act of 1882, required executive officials to
“examine” noncitizens and deny “permi[ssion] to land” to “any
convict, lunatic, idiot, or any person unable to take care of
himself or herself without becoming a public charge.” 22Stat. 214.
The Act provided no exception for citizens’ spouses. And when
Congress drafted a successor statute that expanded the grounds of
inadmissibility, it again gave no special treatment to the marital
relationship. Immigration Act of 1891, ch. 551, 26Stat. 1084.

															There are other examples. The Page Act of 1875,
which functioned as a restriction on Chinese female immigration,
contained no exception for wives. 18Stat. 477–478; see Colindres , 71 F. 4th, at 1023. Or consider the
Emergency Quota Act of 1921, which capped the number of immigrants
permitted to enter the country each year. 42Stat. 5–6. Although the
Act gave preferential treatment to citizens’ wives, “once all the
quota spots were filled for the year, the spouse was barred without
exception.” Din , 576 U. S., at 97 (plurality
opinion).[ 6 ] See also C.
Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law
of Citizenship 115 (1998) (“[C]itizens’ wives were still quota
immigrants, and immigration officials could regulate their entry
closely if economic or other circumstances prompted a general
tightening of admission”). In 1924, Congress, showing favor to men
rather than marriage, lifted the quotas for male citizens with
noncitizen wives, but did not similarly clear the way for female
citizens with noncitizen husbands. Abrams 12. This gender disparity
did not change until 1952. Id ., at 13–14.

															That is not to say that Congress has not
extended special treatment to marriage—it has. For instance, the
War Brides Act of 1945 provided that the noncitizen spouses of
World War II veterans would be exempt from certain admissibility
bars and documentary requirements. Ch. 591, 59Stat. 659. Closer to
home, Asencio-Cordero’s visa application rested on his marriage to
Muñoz, which made him eligible for immigrant status. §1154. But
while Congress has made it easier for spouses to immigrate, it has
never made spousal immigration a matter of right. On the contrary,
qualifications and restrictions have long been the norm. See, e.g. , Act of Aug. 9, 1946, ch. 945, 60Stat. 975 (granting
nonquota status to Chinese wives of American citizens, but only for
those with longstanding marriages).

															Of particular relevance to Muñoz, Congress has
not exempted spouses from inadmissibility restrictions like the
INA’s unlawful-activity bar. Precusors to that bar have existed
since the early 20th century. For example, the Immigration Act of
1917 provided for the exclusion of “persons who have been convicted
of or admit having committed a felony or other crime or misdemeanor
involving moral turpitude.” Ch. 29, 39Stat. 875. Consular officers
applied this bar to spouses, and courts refused to review those
visa denials, citing the doctrine of consular nonreviewability.
See, e.g. , United States ex rel. Ulrich v. Kellogg , 30 F.2d 984, 985–986 (CADC 1929). United States ex rel. Knauff v .
Shaughnessy is a striking example from this Court. In Knauff , a United States citizen (and World War II veteran)
found himself similarly situated to Muñoz: His noncitizen wife was
denied admission for security reasons, based on “information of a
confidential nature, the disclosure of which would be prejudicial
to the public interest.” 338 U. S., at 541, 544. We held that
the War Brides Act did not supersede the statute on which the
Attorney General had relied. Id ., at 546–547 (“There is
nothing in the War Brides Act . . . to indicate that it
was the purpose of Congress, by partially suspending compliance
with certain requirements and quota provisions of the immigration
laws, to relax the security provisions of the immigration laws”).
So, “[a]s all other aliens, petitioner had to stand the test of
security.” Id ., at 547. Nor was she entitled to a hearing,
because “[w]hatever the procedure authorized by Congress is, it is
due process as far as an alien denied entry is concerned.” Id ., at 544. The Attorney General’s decision was “final and
conclusive,” and he did not have to divulge the reason for it. Id. , at 543.[ 7 ] Knauff thus reaffirmed the longstanding
principle “that the United States can, as a matter of public policy
. . . forbid aliens or classes of aliens from coming
within their borders,” and “[n]o limits can be put by the courts
upon” that power. Wong Wing v. United States , 163 U.S.
228 , 237 (1896). Congress’s authority to “formulat[e]
. . . policies” concerning the entry of noncitizens “has
become about as firmly imbedded in the legislative and judicial
tissues of our body politic as any aspect of our government,”
representing “not merely ‘a page of history,’ but a whole volume.” Galvan v. Press , 347 U.S.
522 , 531 (1954) (citation omitted). “[T]he Court’s general
reaffirmations of this principle have been legion.” Mandel ,
408 U. S., at 765–766; see also id ., at 765 (“[T]he
power to exclude aliens is ‘inherent in sovereignty, necessary for
maintaining normal international relations and defending the
country against foreign encroachments and dangers—a power to be
exercised exclusively by the political branches of
government’ ”).[ 8 ] While
“families of putative immigrants certainly have an interest in
their admission,” it is a “fallacy” to leap from that premise to
the conclusion that United States citizens have a
“ ‘fundamental right’ ” that can limit how Congress
exercises “the Nation’s sovereign power to admit or exclude
foreigners.” Fiallo , 430 U. S., at 795, n. 6.

															To be sure, Congress can use its authority over
immigration to prioritize the unity of the immigrant family. Din , 576 U. S., at 97 (plurality opinion). See, e.g. , §1151(b)(2)(A)(i) (exempting “immediate relatives”
from certain numerical quotas). It has frequently done just that.
But the Constitution does not require this result; moreover,
Congress’s generosity with respect to spousal immigration has
always been subject to restrictions, including bars on
admissibility. This is an area in which more than family unity is
at play: Other issues, including national security and foreign
policy, matter too. Thus, while Congress may show special
solicitude to noncitizen spouses, such solicitude is “a matter of
legislative grace rather than fundamental right.” Din , 576
U. S., at 97 (plurality opinion). Muñoz has pointed to no
evidence suggesting otherwise.[ 9 ]

															IV

															As the State Department observes, Muñoz’s
claim to a procedural due process right in someone else’s legal proceeding would have unsettling collateral consequences.
Consider where her logic leads: Could a wife challenge her
husband’s “assignment to a remote prison or to an overseas military
deployment, even though prisoners and service members themselves
cannot bring such challenges”? Reply Brief 13. Could a citizen
assert procedural rights in the removal proceeding of her spouse?
Brief for Petitioners 30. Muñoz’s position would usher in a new
strain of constitutional law, for the Constitution does not
ordinarily prevent the government from taking actions that
“indirectly or incidentally” burden a citizen’s legal rights. Castle Rock v. Gonzales , 545
U.S. 748 , 767 (2005) (quoting O’Bannon v. Town Court
Nursing Center , 447 U.S.
773 , 788 (1980)).

															Our decision in O’Bannon is illustrative.
There, a group of nursing-home residents alleged that the
government had violated their liberty interests when it decertified
their nursing home without providing them a hearing. 447
U. S., at 777–781, 784. We acknowledged that the residents
would suffer harm from the government’s decision. Id ., at
784, and n. 16. But we held that absent a “direct restraint on
[their liberty],” the decision did not implicate their due process
rights. Id ., at 788. The decertification decision imposed
only an indirect harm. We explained that the residents were
akin to “members of a family who have been dependent on an errant
father.” Ibid . Although “they may suffer serious trauma if
he is deprived of his liberty or property as a consequence of
criminal proceedings,” such family members “surely . . .
have no constitutional right to participate in his trial or
sentencing procedures.” Ibid . The same principle governs
here. Muñoz has suffered harm from the denial of Asencio-Cordero’s
visa application, but that harm does not give her a constitutional
right to participate in his consular process.

															Lest there be any doubt, Mandel does not hold that citizens have procedural due process rights in
the visa proceedings of others. The Ninth Circuit seems to have
read Mandel that way, but that is a misreading.

															In Mandel, the Attorney General refused
to waive inadmissibility and grant Ernest Mandel, a self-described
“ ‘revolutionary Marxist,’ ” a temporary visa to attend
academic conferences in the United States. 408 U. S., at 756.
A group of professors sued on the ground that the Executive’s
discretion to grant a waiver was limited by their First Amendment
right to hear Mandel speak; they insisted that “the First Amendment
claim should prevail, at least where no justification is advanced
for denial of a waiver.” Id ., at 769. In response, the
Attorney General asserted that “Congress has delegated the waiver
decision to the Executive in its sole and unfettered discretion,
and any reason or no reason may be given.” Ibid .

															But because “the Attorney General did inform Mandel’s counsel of the reason for refusing him a waiver,”
the Court chose not to resolve this statutory argument. Ibid . (emphasis added). Instead, it said that so long as the
Executive gives a “facially legitimate and bona fide reason” for
denying a waiver under §212(a)(28) of the INA—the statutory
provision at issue—“the courts will neither look behind the
exercise of that discretion, nor test it by balancing its
justification against the First Amendment interests of those who
seek personal communication with the applicant.” Id ., at
770. The Court expressly declined to address whether a
constitutional challenge would “be available for attacking [an]
exercise of discretion for which no justification whatsoever is
advanced.” Ibid .

															Thus, the “facially legitimate and bona fide
reason” in Mandel was the justification for avoiding a
difficult question of statutory interpretation; it had nothing to
do with procedural due process. Indeed, a procedural due process
claim was not even before the Court. The professors argued that the
denial of Mandel’s visa directly deprived them of their First
Amendment rights, not that their First Amendment rights
entitled them to procedural protections in Mandel’s visa
application process. Id ., at 754. To make an argument
logically analogous to that of the professors, Muñoz would have to
claim that the denial of Asencio-Cordero’s visa violated her
substantive due process right to bring her noncitizen spouse to the
United States—thereby triggering the State Department’s obligation
to demonstrate why denying him the visa is the least restrictive
means of serving the Government’s interest in national security.
But, as we have explained, Muñoz has disavowed that argument, which
cannot succeed in any event because the asserted right is not a
longstanding and “ ‘deeply rooted’ ” tradition in this
country. Glucksberg , 521 U. S., at 721.

															The bottom line is that procedural due process
is an odd vehicle for Muñoz’s argument, and Mandel does not
support it. Whatever else it may stand for, Mandel does not
hold that a citizen’s independent constitutional right (say, a free
speech claim) gives that citizen a procedural due process right to
a “facially legitimate and bona fide reason” for why someone else’s
visa was denied. And Muñoz is not constitutionally entitled to one
here.

															*  *  *

															The judgment of the Ninth Circuit is reversed,
and the case is remanded for further proceedings consistent with
this opinion.

															It is so ordered . Notes 1 We describe the process
for noncitizens who, like Asencio-Cordero, have not yet been
lawfully admitted to the United States and must therefore apply
from abroad. Compare 8 U. S. C. §1255(a) (adjustment of
status to lawful permanent resident for noncitizens already
admitted into the United States) with 22 CFR §§42.61, 42.62 (2023)
(noncitizens applying for immigrant visa must appear in person
before consular officer in consular district of
residence). 2 At oral argument in this
Court, Muñoz suggested that she is asserting a constitutional
entitlement only to information—a “facially legitimate and bona
fide reason” why the consular officer deemed her husband
inadmissible under the “unlawful activity” bar. Tr. of Oral Arg.
59–64. Elsewhere, though, she suggests that the Due Process Clause
entitles her to both the information and “a meaningful opportunity
to respond.” Brief for Respondents 11. If appeal is no longer
available under State Department regulations (and the Ninth Circuit
said it was not), Muñoz presumably seeks what she sought below:
judicial review of the inadmissibility finding and a court order
requiring the State Department to reconsider Asencio-Cordero’s visa
application. 50 F. 4th, at 912, n. 14. This level of
judicial involvement in the visa process would be a significant
extension of our precedent. The dissent, however, would remand to
the Ninth Circuit for consideration of this relief. Post , at
10, n. 2 (opinion of Sotomayor, J.). 3 Inexplicably, the dissent
claims that the Court is reaching out improperly to settle this
issue. Post , at 2. We granted certiorari on this very
question to resolve a longstanding circuit split. 601 U. S.
___ (2024). And we did so at the request of the Solicitor General,
who emphasized both the Government’s need for uniformity in the
administration of immigration law and the importance of this issue
to national security. Pet. for Cert. 27–28, 31–33. 4 In Trump v. Hawaii , the plaintiffs argued that a proclamation excluding
certain classes of noncitizens from entering the United States
exceeded the President’s authority under the Immigration and
Nationality Act. 585 U.S. 667, 681–682 (2018). The Court explained
that the doctrine of consular nonreviewability is not
jurisdictional and “assume[d] without deciding that [the]
plaintiffs’ statutory claims [were] reviewable.” Id ., at
682–683. 5 The dissent characterizes
our decision today as extreme, post , at 14, but it is the
dissent who embraces the outlier position: Our opinion is in line
with the vast majority of Circuits that have decided this question.
The dissent aligns itself with the lone Circuit going the other
way. 6 Given the then-existing
law of coverture, the Act was only relevant to noncitizen wives—a
citizen wife with a noncitizen husband was forced to assume her
husband’s nationality. K. Abrams, What Makes the Family Special? 80
U. Chi. L. Rev. 7, 11 (2013) (Abrams). (“Giving wives the
opportunity to sponsor their husbands would have been nonsensical;
under the Expatriation Act of 1907, a wife automatically lost her US citizenship upon marrying a foreigner, so there
could be no such thing as a US citizen wife with an immigrant
husband” (footnotes omitted)). This changed in 1922, when the Cable
Act “largely undid derivative citizenship for married women.” Ibid. 7 The dissent criticizes Knauff because the Attorney General, under pressure from
Congress, ultimately revisited his decision and admitted Knauff as
a lawful permanent resident. Post , at 19. But the history of
the case does not establish that the Court was wrong to decline to
review the Attorney General’s decision. It reflects a decision that
was made by the political branches and reversed through the
political process. Moreover, Knauff remains good law that we
have repeatedly reaffirmed. Dept. of Homeland Security v. Thuraissigiam , 591 U.S. 103, 138–139 (2020). 8 The dissent barely
acknowledges that any of this precedent exists. In fact, rather
than recognizing the prerogatives of the political branches in this
area, the dissent criticizes the United States’ immigration policy, post , at 4–5, as well as the competence of the Executive
Branch officials who make difficult, high-stakes decisions about
which noncitizens seeking entry to the United States pose a threat
to national security, post , at 6–7. Perhaps our dissenting
colleagues are well-equipped to set immigration policy and manage
border security, but the Constitution entrusts those tasks to the
political branches. 9 The dissent never
addresses the actual issue in this case, which is whether the
Judiciary has any authority to review visa determinations made by
the State Department. Instead, the dissent chooses the rhetorically
easier path of charging the Court with endangering the fundamental
right to marriage. See post , at 11–14. To be clear: Today’s
decision does not remotely call into question any precedent of this
Court, including those protecting marriage as a fundamental right.
By contrast, the dissent would upend more than a century’s worth of
this Court’s precedent regarding the doctrine of consular
nonreviewability, not to mention equally longstanding congressional
and Executive Branch practice. Ibid . SUPREME COURT OF THE UNITED STATES

															_________________

															No. 23–334

															_________________

															Department of State, et al., PETITIONERS v. Sandra MuÑoz, et al.

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 21, 2024]

															Justice Gorsuch, concurring in the
judgment.

															A consular officer denied Sandra Muñoz’s husband
a visa to come to and live lawfully in the United States. 526
F. Supp. 3d 709, 713–714 (CD Cal. 2021). In doing so, the
officer simply cited 8 U. S. C. §1182(a)(3)(A)(ii), a
provision of the Immigration and Nationality Act that makes
inadmissible any person a consular officer “has reasonable ground
to believe . . . seeks to enter the United States to
engage . . . in . . . any other unlawful
activity.” Eventually, Ms. Muñoz sued for further explanation of
that decision. See App. 2, 8–9. The government, she claimed, needed
to identify for her not just the statute on which it based its
decision, but also the “ ‘discrete factual predicates’ ”
on which it relied. Id ., at 8, ¶36.

															Over the course of this litigation, the United
States has given Ms. Muñoz what she requested. As the Ninth Circuit
recognized, the United States has now revealed the factual basis
for its decision to deny her husband a visa. 50 F. 4th 906, 919–920
(2022); see App. to Pet. for Cert. 124a; App. 76. In this Court,
too, the government has assured Ms. Muñoz that she has a chance to
use and respond to that information. She can again seek her
husband’s admission to this country, the government says—and this
time she will be armed with an understanding of why the government
denied the last application. Tr. of Oral Arg. 45, 104.

															Those developments should end this case. With no
more information to uncover and no bar to trying for admission
again, nothing is left for a court to address through this
litigation. In particular, the constitutional questions presented
by the government no longer have any practical relevance here.
Whether or not Ms. Muñoz had a constitutional right to the
information she wanted, the government gave it to her. I therefore
would reverse the Ninth Circuit’s decision without reaching the
government’s constitutional arguments. See City of Mesquite v. Aladdin’s Castle, Inc. , 455 U.S.
283 , 294–295 (1982). At the same time, I do not cast aspersions
on the motives of my colleagues who do reach the government’s
arguments. They may see the case differently than I do, but their
decision and rationales are essentially those the Solicitor General
and the Department of State urged this Court to adopt. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 23–334

															_________________

															Department of State, et al., PETITIONERS v. Sandra MuÑoz, et al.

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 21, 2024]

															Justice Sotomayor, with whom Justice Kagan and
Justice Jackson join, dissenting.

															“The right to marry is fundamental as a matter
of history and tradition.” Obergefell v. Hodges , 576 U.S.
644 , 671 (2015). After U. S. citizen Sandra Muñoz and her
Salvadoran husband spent five years of married life in the United
States, the Government told her that he could no longer reenter the
country. If she wanted to live together with him and their child
again, she would have to move to El Salvador. The reason? A
consular officer’s bare assertion that her husband, who has no
criminal record in the United States or El Salvador, planned to
engage in “unlawful activity.” 8 U. S. C.
§1182(a)(3)(A)(ii). Muñoz argues that the Government, having
burdened her fundamental right to marriage, owes her one thing: the
factual basis for excluding her husband.

															The majority could have resolved this case on
narrow grounds under longstanding precedent. This Court has already
recognized that excluding a noncitizen from the country can burden
the constitutional rights of citizens who seek his presence. See Kleindienst v. Mandel , 408 U.S.
753 , 765–770 (1972). Acknowledging the Government’s power over
admission and exclusion, the Mandel Court held that “a
facially legitimate and bona fide reason” for the exclusion
sufficed to justify that burden. Id ., at 770. In this case,
after protracted litigation, the Government finally explained that
it denied Muñoz’s husband a visa because of its belief that he had
connections to the gang MS–13. Regardless of the validity of that
belief, it is a “facially legitimate and bona fide reason.” Ibid. ; see also ante, at 1 (Gorsuch, J., concurring
in judgment). Under this Court’s precedent, that is enough.

															Instead, the majority today chooses a broad
holding on marriage over a narrow one on procedure.[ 1 ] It holds that Muñoz’s right to marry, live
with, and raise children alongside her husband entitles her to
nothing when the Government excludes him from the country. Despite
the majority’s assurance two Terms ago that its eradication of the
right to abortion “does not undermine . . . in any way”
other entrenched substantive due process rights such as “the right
to marry,” “the right to reside with relatives,” and “the right to
make decisions about the education of one’s children,” the Court
fails at the first pass. Dobbs v. Jackson Women’s Health
Organization , 597 U.S. 215, 256–257 (2022). Because, to me,
there is no question that excluding a citizen’s spouse burdens her
right to marriage, and that burden requires the Government to
provide at least a factual basis for its decision, I respectfully
dissent.

															I

															A

															Marriage is not an automatic ticket to a green
card. A married citizen-noncitizen couple must jump through a
series of administrative hoops to apply for the lawful permanent
residency that marriage can confer. Noncitizen spouses coming from
abroad must apply for a visa to enter the United States. In certain
cases, however, the law requires even couples who meet and marry in
the United States to send the noncitizen spouse back to his country
of origin to do the same thing. In doing so, the couple must take
an enormous risk to pursue the stability of lawful immigration
status: the risk that when the noncitizen spouse tries to reenter
the United States, he will face unexpected exile.

															In technical immigration terms, a noncitizen
spouse applying for a green card seeks to “[a]djus[t]” his
immigration “status” from “nonimmigrant to that of [a] person
admitted for permanent residence.” 8 U. S. C. §1255. To
do so, the citizen spouse must petition the Government on the
noncitizen’s behalf. The citizen spouse first sends United States
Citizenship and Immigration Services (USCIS) a petition to classify
the noncitizen spouse as an “immediate relative.”
§§1151(b)(2)(A)(i), 1154(a)(1)(A). Once USCIS approves the
petition, a noncitizen spouse who is already in the United States
can then apply to adjust his status to lawful permanent resident
without leaving the country. See §1255(a). For a noncitizen spouse
living outside of the United States, however, USCIS first approves
the immediate-relative petition, but then sends it to the consulate
of the country where the noncitizen spouse lives for processing.
See §1154(b); 22 CFR §§42.42, 42.61 (2023). A consular officer
interviews the noncitizen spouse and makes the final admission
decision. See 8 U. S. C. §§1201, 1202(f ).

															Because of idiosyncrasies in our immigration
system, not all noncitizen spouses living in the United States can
adjust their status with USCIS. Even when a couple meets, marries,
and lives in the United States, the noncitizen spouse may instead
have to travel back to his country of origin for consular
processing if he was never formally “inspected and admitted or
paroled” at the Border. §1255(a). A noncitizen who entered without
“inspect[ion]” in this way typically cannot adjust his status from
within the United States based on an immediate-relative petition.
See ibid. Once the citizen spouse submits the petition to
USCIS, the noncitizen spouse must return to his country of origin
and meet with a consular officer, who will then adjudicate his
application. See 22 CFR §§42.42, 42.61, 42.62.

															Living in the United States after initially
having entered without inspection is not unusual. In fact, the
Government endorses the presence of many of these members of our
national community. Recipients under the Deferred Action for
Childhood Arrivals (DACA) program, for instance, may have been
brought across the border by their parents without inspection. Even
though DACA status entitles them to work and live in the country
without the immediate threat of removal, see 8 CFR §236.21(c), it
does not change their initial entry designation. As of the end of
2023, there were roughly 530,000 active DACA recipients in the
United States. See Dept. of Homeland Security (DHS), USCIS, Count
of Active DACA Recipients by Month of Current DACA Expiration (as
of Dec. 31, 2023). The same is true of the approximately 680,000
holders of Temporary Protected Status (TPS), who have been
designated temporarily unable to return to their home countries
because of war, natural disasters, or other extraordinary
circumstances. See DHS, Citizenship and Immigration Services
Ombudsman, Ann. Rep. 45 (June 30, 2023); Sanchez v. Mayorkas , 593 U.S. 409, 419 (2021) (holding that TPS status
did not change an entry without inspection into a lawful admission
that would allow adjustment to lawful permanent residency from
within the United States). Even when married to a U. S.
citizen, DACA recipients and TPS holders are barred from adjusting
status within the United States if they entered without inspection.
See 8 U. S. C. §1255(a).

															Ironically, the longer the noncitizen spouse has
lived in the United States, the more difficult and uncertain the
process to adjust to lawful status can become. A noncitizen who
initially entered without inspection will accrue “unlawful
presence,” which can bar him from reentering the country if he
leaves. §1182(a)(9)(B). If a noncitizen who has lived in the United
States between six months and one year leaves and tries to reenter,
he will be subject to a 3-year reentry bar. §1182(a)(9)(B)(i)(I).
If he has lived in the United States for more than a year and tries
to reenter, he faces a 10-year ban. §1182(a)(9)(B)(i)(II).

															This scheme places couples who meet and marry in
the United States in a difficult position if the noncitizen spouse
entered without inspection. The couple can continue to live with
one spouse in a precarious immigration status; or, they can seek
the stability of permanent residency for the noncitizen spouse but
face a potential multiyear exile when he leaves and applies for
reentry.

															Recognizing this difficult choice, USCIS allows
a noncitizen spouse to apply for a waiver of inadmissibility for
any accrued unlawful presence before departing the United States
for his consular interview. To obtain such a waiver, the noncitizen
spouse must show that the citizen spouse will suffer “extreme
hardship” if her noncitizen spouse is not admitted.
§1182(a)(9)(B)(v). Then, once the noncitizen spouse returns to his
country of origin, if a consular officer approves his visa
application, he can reenter free from the inadmissibility bar.

															Consular officers fall under the State
Department, see §1104(a), not DHS, which oversees USCIS, see 6
U. S. C. §271(a). Even though DHS officers and consular
officers make admission determinations under the same substantive
laws, see §1182, in reality, a noncitizen seeking admission via
consular processing faces a far higher risk of arbitrary denial
with far less opportunity for review than a noncitizen seeking
admission from DHS.

															DHS officers are constrained by a framework of
required process that does not apply to consular processing. A
noncitizen denied adjustment of status in the United States must
receive notice and the reasons for a denial. See 8 CFR
§245.2(a)(5)(i); DHS, USCIS, Policy Manual, vol. 7, pt. A, ch.
11—Decision Procedures (June 14, 2024) (requiring that a denial
notice either “[e]xplain what eligibility requirements are not met
and why they are not met” or “[e]xplain the positive and negative
factors considered, the relative weight given to each factor
individually and collectively, and why the negative factors
outweigh the positive factors”). He can renew his application in
removal proceedings before an immigration court, see 8
U. S. C. §1229b(b)(1), where DHS must present any
evidence against him in adversarial proceedings, see §§1229(a),
1229a(b)(4)(B), 1229a(c)(3). From those removal proceedings, a
noncitizen can petition for review to the Board of Immigration
Appeals (BIA), see 8 CFR §1003.1(b), and, ultimately, a federal
court of appeals, see 8 U. S. C. §1252(a).

															In contrast, a noncitizen denied admission via
consular processing is entitled to nothing more than a cite to the
statute under which the consular officer decided to exclude him.
§1182(b)(1).[ 2 ] He has no
opportunity for administrative or judicial review, and can only
submit more evidence and request reconsideration. 22 CFR §42.81(e).
Former consular officers tell this Court that this lack of
accountability, coupled with deficient information and inconsistent
training, means decisions often “rely on stereotypes or tropes,”
even “bias or bad faith.” Brief for Former Consular Officers as Amici Curiae 8. Visa applicants may “experience disparate
outcomes based on nothing more than the luck or misfortune of which
diplomatic post and consular officer . . . they happen to
be assigned.” Id ., at 8–9. The State Department’s Office of
the Inspector General has documented numerous deficiencies in
consular processing across several continents. See, e . g ., ISP–I–19–14, Inspection of Embassy Bogota,
Colombia, p. 16 (Apr. 2019) (finding consular managers in
Bogota required visa adjudicators to maintain an average of 30
in-person interviews per hour). Supervisors are required by the
State Department to review a certain percentage of visa denials but
often fail to do so. See, e . g ., Office of Inspector
General, ISP–I–19–17, Inspection of Embassy Santo Domingo,
Dominican Republic, p. 12 (July 2019) (finding “managers did
not review 284 (23 percent) of the refusals that should have been
reviewed between April 1 and June 30, 2018”); Office of Inspector
General, ISP–I–16–24A, Inspection of Embassy Ankara, Turkey,
p. 20 (Sept. 2016) (finding visa adjudicator failed to review
the required 10% of visa issuances and 20% of visa denials).

															When the Government requires one spouse to leave
the country to apply for immigration status based on his marriage,
it therefore asks him to give up the process he would receive in
the United States and subject himself to the black box of consular
processing.

															B

															Muñoz, a celebrated workers’ rights lawyer
from Los Angeles, California, met Luis Asencio-Cordero in 2008,
three years after he had arrived in the United States. They have
been married since 2010 and have a child together. In 2013, Muñoz
filed an immediate-relative petition for her husband, which USCIS
approved. Because Asencio-Cordero had originally entered the United
States without inspection, the Government required him to return to
El Salvador, his country of origin, for consular processing to
obtain his immigrant visa. Yet he also faced a bar to reentry if he
left the country. DHS granted him a waiver of this bar upon his
anticipated return to the United States because of the “extreme
hardship” Muñoz would suffer if he were excluded. 8
U. S. C. §1182(a)(9)(B)(v). In April 2015,
Asencio-Cordero traveled from California to El Salvador. That was
the last time he stood on American soil.

															Asencio-Cordero attended the initial consular
interview in San Salvador on May 28, 2015. In December 2015, a
consular officer denied his visa application. As justification, the
denial cited only to §1182(a)(3)(A)(ii). That statute provides that
any noncitizen “who a consular officer . . . knows, or
has reasonable ground to believe, seeks to enter the United States
to engage solely, principally, or incidentally in . . .
any other unlawful activity . . . is inadmissible.” In
other words, the consular officer excluded Asencio-Cordero based on
a belief that he planned to engage in some unspecified unlawful
conduct upon return to the United States. “[U]nlawful activity”
could mean anything from jaywalking to murder.

															Asencio-Cordero has no criminal history in the
United States or El Salvador. See 50 F. 4th 906, 911 (CA9 2022);
Brief for Respondents 8, n. 5 (“It is uncontested that
Asencio-Cordero has never been charged with any crime”). With no
obvious justification for the consular officer’s belief, Muñoz and
Asencio-Cordero asked for reconsideration. Muñoz sought the help of
Congresswoman Judy Chu, who sent a letter to the State Department
on Muñoz’s behalf. The following day, the consulate responded to
the letter again with only a citation to §1182(a)(3)(A)(ii). In
January and April 2016, Muñoz asked the State Department for the
factual basis for her husband’s inadmissibility. She and her
husband provided evidence of her accolades at work and attestations
of Asencio-Cordero’s good moral character. A few days later, the
consulate notified Muñoz that the State Department had reviewed the
denial and concurred with the consular officer’s decision. It
denied reconsideration.

															After the consulate denied reconsideration,
Muñoz and her husband wrote to the State Department again
requesting a factual basis for the inadmissibility decision.
Asencio-Cordero has no criminal record, but he does have several
tattoos from his teenage years. App. 22. They depict a range of
subjects, including “Our Lady of Guadalupe, Sigmund Freud, a
‘tribal’ pattern with a paw print, and theatrical masks with dice
and cards.” Brief for Respondents 2, n. 2. Some of these
images have deep significance in Latin American culture. See, e . g ., Brief for Professors and Scholars as Amici
Curiae 8–10 (“Many Latin Americans view La Virgen de Guadalupe
as a special protector, and as a symbol of pan-Latinx identity that
transcends attachment to any one geography”). Some also happen to
appear on gang members. See ibid. (noting that “law
enforcement agencies and officials often use tattoos of common
Catholic imagery . . . as indicia of gang membership”).
Speculating about potential bases for a visa denial, Muñoz and her
husband included additional evidence from a court-approved gang
expert in their letter to the State Department. The expert reviewed
Asencio-Cordero’s tattoos and concluded that none were
“ ‘related to any gang or criminal organization in the United
States or elsewhere.’ ” 50 F. 4th, at 911. The State
Department responded that it lacked authority to overturn consular
decisions and “ ‘concurred in the finding of
ineligibility.’ ” Ibid. The consulate followed up in
May 2016, a year after Asencio-Cordero’s initial interview, by
listing all the entities that had reviewed the visa application and
noting that “ ‘there is no appeal.’ ” Ibid. It was only after Muñoz and her husband sued the
Government in Federal District Court that they finally received the
factual basis for the denial. After almost two years of litigation,
the Government submitted a declaration from a State Department
attorney-adviser. Id ., at 912. That declaration stated that
the consular officer denied Asencio-Cordero’s visa application
under §1182(a)(3)(A)(ii) because “ ‘based on the in-person
interview, a criminal review of Mr. Asencio Cordero and a review of
. . . Mr. Asencio Cordero’s tattoos, the consular officer
determined that Mr. Asencio Cordero was a member of a known
criminal organization . . . specifically MS-13.’ ” Ibid. (alterations omitted).

															The Court of Appeals ruled in Muñoz’s favor. It
held that the Government’s reason was too little, too late. The
denial of her husband’s visa burdened Muñoz’s right to marriage,
and the Government had provided inadequate process. Even though the
Government provided a “facially legitimate and bona fide” reason,
that reason was not “timely” enough to satisfy constitutional due
process requirements. Id ., at 919–921. This Court granted
the Government’s petition for a writ of certiorari. 601 U. S.
___ (2024).

															II

															There was a simple way to resolve this case. I
agree with Justice Gorsuch that “the United States has now revealed
the factual basis for its decision to deny [Muñoz’s] husband a
visa,” and she has thus received whatever process she was due. Ante , at 1 (opinion concurring in judgment).[ 3 ] That could and should have been the end of
it. Instead, the majority swings for the fences. It seizes on the
Government’s invitation to abrogate the right to marriage in the
immigration context and sharply limit this Court’s longstanding
precedent.

															Muñoz has a constitutionally protected interest
in her husband’s visa application because its denial burdened her
right to marriage. She petitioned USCIS to recognize their marriage
so that her husband could remain lawfully beside her and their
child in the United States. It was the extreme hardship Muñoz faced
from her husband’s exclusion that formed the basis for USCIS’s
waiver of his inadmissibility. For the majority, however, once
Muñoz’s husband left the country in reliance on those approvals,
their marriage ceased to matter. Suddenly, the Government owed her
no explanation at all.

															The constitutional right to marriage is not so
flimsy. The Government cannot banish a U. S. citizen’s spouse
and give only a bare statutory citation as an excuse. By denying
Muñoz the right to a factual basis for her husband’s exclusion, the
majority departs from longstanding precedent and gravely
undervalues the right to marriage in the immigration context.

															A

															The constitutional right to marriage has deep
roots. “[M]arriage,” this Court said over a century ago, “is
something more than a mere contract.” Maynard v. Hill , 125 U.S.
190 , 210–211 (1888). It is “the most important relation in
life,” id. , at 205, and “the foundation of the family,” id. , at 211. This Court has described it in one breath as
the right “to marry, establish a home and bring up children,” a
right “long recognized at common law as essential to the orderly
pursuit of happiness by free men.” Meyer v. Nebraska , 262 U.S.
390 , 399 (1923). In upholding the right of Mildred and Richard
Loving to have their marriage license from the District of Columbia
recognized by Virginia, this Court emphasized that “[m]arriage is
one of the ‘basic civil rights of man,’ fundamental to our very
existence and survival.” Loving v. Virginia , 388 U.S.
1 , 12 (1967) (quoting Skinner v. Oklahoma ex rel.
Williamson , 316 U.S.
535 , 541 (1942)). Indeed, the right to marriage was one of the
first building blocks of substantive due process. The right was so
“ ‘fundamental’ ” and “ ‘implicit in the concept of
ordered liberty’ ” that the Roe Court invoked it as
part of the foundation underlying the right to abortion. Roe v. Wade , 410 U.S.
113 , 152–153 (1973) (cataloguing existing substantive due
process rights as extending to “marriage, procreation,
contraception, family relationships, and child rearing and
education” (citations omitted)), overruled, Dobbs , 597 U.S.
215.

															Almost 10 years ago, this Court vindicated the
expansiveness of the right to marriage. It upheld the right of
James Obergefell and his terminally ill husband, John Arthur, to
have their marriage from Maryland recognized in Ohio. Rejecting the
idea that “Ohio can erase [Obergefell’s] marriage to John Arthur
for all time” by declining to place Obergefell as the surviving
spouse on Arthur’s death certificate, this Court reasoned that
“ marriage is a right ‘older than the Bill of Rights.’ ” Obergefell , 576 U. S., at 666, 678. Marriage
“ ‘fulfils yearnings for security, safe haven, and connection
that express our common humanity.’ ” Id ., at 666.
“Marriage responds to the universal fear that a lonely person might
call out only to find no one there. It offers the hope of
companionship and understanding and assurance that while both still
live there will be someone to care for the other.” Id ., at
667.

															The majority, ignoring these precedents, makes
the same fatal error it made in Dobbs : requiring too
“ ‘careful [a] description of the asserted fundamental liberty
interest.’ ” Ante , at 9 (quoting Washington v. Glucksberg , 521 U.S.
702 , 721 (1997)); cf. Dobbs , 597 U. S., at 374–375
(Breyer, Sotomayor, and Kagan, JJ., dissenting). The majority
faults Muñoz’s invocation of the “ ‘fundamental right to
marriage’ ” as “difficult to pin down.” Ante , at 9.
Instead, it tries to characterize her asserted right as “an
entitlement to bring [her husband] to the United States,” even
though it acknowledges that Muñoz “disclaims that
characterization.” Ibid. Obergefell rejected what the majority
does today as “inconsistent with the approach this Court has used
in discussing [the] fundamental rights” of “marriage and intimacy.”
576 U. S., at 671. Cataloguing a half century of precedent on
the right to marriage, the Court stressed that “ Loving did
not ask about a ‘right to interracial marriage’; Turner did
not ask about a ‘right of inmates to marry’; and Zablocki did not ask about a ‘right of fathers with unpaid child support
duties to marry.’ ” Ibid. Instead, “each case inquired
about the right to marry in its comprehensive sense” of “marriage
and intimacy.” Ibid. Similarly, Muñoz does not argue that
her marriage gives her the right to immigrate her husband. She
instead advances the reasonable position that blocking her from
living with her husband in the United States burdens her right “to
marry, establish a home and bring up children” with him. Meyer , 262 U. S., at 399.

															This Court has never required that plaintiffs be
fully prevented from exercising their right to marriage before
invoking it. Instead, the question is whether a challenged
government action burdens the right. For example, the Court in Zablocki v. Redhail , 434 U.S.
374 (1978), examined the “burde[n]” placed on fathers by a
statute that required a hearing to “counsel” them “as to the
necessity of fulfilling” any outstanding child support obligations
before being granted permission to marry. Id ., at 387–388.
The Court in Turner v. Safley , 482 U.S.
78 (1987), applied Zablocki to incarcerated people to
hold that the particular prison marriage restriction at issue
“impermissibly burden[ed] the right to marry.” 482 U. S., at
97. There can be no real question that excluding a citizen’s spouse
from the country “burdens” the citizen’s right to marriage as this
Court has repeatedly defined it. This Court has never held that a
married couple’s ability to move their home elsewhere removes the
burden on their constitutional rights. It did not tell Richard and
Mildred Loving to stay in the District of Columbia or James
Obergefell and John Arthur to stay in Maryland. It upheld their
ability to exercise their right to marriage wherever they sought to
make their home.

															Muñoz may be able to live in El Salvador
alongside her husband or at least visit him there, but not everyone
is so lucky. The majority’s holding will also extend to those
couples who, like the Lovings and the Obergefells, depend on
American law for their marriages’ validity. Same-sex couples may be
forced to relocate to countries that do not recognize same-sex
marriage, or even those that criminalize homosexuality. American
husbands may be unable to follow their wives abroad if their wives’
countries of origin do not recognize derivative immigration status
from women (as was the case in this country for many years, see ante , at 12 (noting visa “quotas . . . for female
citizens with noncitizen husbands” until 1952)). The majority’s
failure to respect the right to marriage in this country consigns
U. S. citizens to rely on the fickle grace of other countries’
immigration laws to vindicate one of the “ ‘basic civil rights
of man’ ” and live alongside their spouses. Loving , 388
U. S., at 12.

															B

															Given that the Government has burdened Muñoz’s
right to marriage by excluding her husband from the country, the
question is the remedy for that burden. Muñoz argues that this
burden triggers procedural due process protections in her husband’s
visa denial. Emphasizing that substantive due process rights like
the right to marriage usually trigger strict scrutiny, the majority
faults Muñoz for creating a right “in a category of one: a
substantive due process right that gets only procedural due process
protection.” Ante , at 10. Muñoz, however, did not create
that category of rights. This Court did. See Mandel , 408
U. S., at 768–770. This Court already set the ground rules for
when the Government’s exercise of its extensive power over the
exclusion of noncitizens burdens a U. S. citizen’s
constitutional rights. See id ., at 770. In short, a
fundamental right may trigger procedural due process protections
over a noncitizen’s exclusion, but such protections are limited.
See ibid. Noncitizens who apply for visas from outside the
United States have no constitutional entitlement to enter the
country, and therefore typically have no constitutional process
protections in the visa application themselves. See Landon v. Plasencia , 459 U.S.
21 , 32 (1982). In contrast, noncitizens who already live in the
United States whom the Government seeks to remove have procedural
due process protections during that removal. See Yick Wo v. Hopkins , 118 U.S.
356 , 369 (1886); Zadvydas v. Davis , 533 U.S.
678 , 693 (2001). Had the Government sought to remove Muñoz’s
husband when they were living together in the United States, he
would have had his own constitutional protections in those
proceedings. Instead, because the Government forced him to leave
the country and reenter in order to adjust his immigration status,
he lost them.

															Not only do noncitizens seeking to enter the
United States lack constitutional process rights in their visa
applications. This Court has further insulated the Government’s
visa determinations from review by declining to evaluate them at
all. See ante, at 6–7. This judge-made “doctrine of consular
nonreviewability” reflects the Judicial Branch’s recognition that
the “ ‘admission and exclusion of foreign nationals’ ” is
an area of unusually heightened congressional and executive power. Ante, at 6–7.[ 4 ] When
the de- nial of a noncitizen’s visa burdens a U. S. citizen’s
constitutional rights, however, this Court has had to reconcile the
importance of those rights with its recognition of Government
authority over visa determinations. In Mandel , it set the
remedy. The Mandel Court held that when a visa denial
“implicate[s]” a citizen’s rights, a court will not look behind a
“facially legitimate and bona fide” reason for the denial. 408
U. S., at 765, 769.

															In Mandel , a group of U. S.
professors sued the Government over the visa denial of Dr. Ernest
E. Mandel, a famous Belgian Marxist. See id ., at 756,
759–760. The professors argued that excluding Mandel burdened their
First Amendment right to hear and meet with him in person. See id ., at 760. The Court agreed that the professors had a
First Amendment “ ‘right to receive information’ ” from
Mandel. Id ., at 762, 764. It also emphasized, as the
majority does today, Congress’s power over the admission and
exclusion of noncitizens. See id ., at 766–767; ante ,
at 6–7. To avoid the need to balance “the strength of the
audience’s interest against that of the Government in refusing a
waiver to the particular [noncitizen] applicant, according to some
as yet undetermined standard,” Mandel , 408 U. S., at
768–769, the Court instead noted that “the Attorney General did
inform Mandel’s counsel of the reason for refusing him a waiver.
And that reason was facially legitimate and bona fide .” Id ., at 769 (emphasis added). Therefore, “when the Executive
exercises [conditional power to exclude] negatively on the basis of
a facially legitimate and bona fide reason, the courts will neither
look behind the exercise of that discretion, nor test it by
balancing its justification against the First Amendment interests
of those who seek personal communication with the applicant.” Id ., at 770. In other words, when a visa denial burdens a
noncitizen’s constitutional rights, rather than attempt to balance
the competing interests under strict scrutiny, a court should
accept the Government’s “facially legitimate and bona fide reason.” Ibid. That minimal requirement ensures that courts do not
unduly intrude on “the Government’s sovereign authority to set the
terms governing the admission and exclusion of noncitizens,” ante , at 11, while also ensuring that the Government does
not arbitrarily burden citizens’ constitutional rights.

															This Court has repeatedly relied on Mandel ’s test in the immigration context. See, e . g ., Trump v. Hawaii , 585 U.S. 667,
703 (2018) (noting that “this Court has engaged in a circumscribed
judicial inquiry when the denial of a visa allegedly burdens the
constitutional rights of a U. S. citizen”); Fiallo v. Bell , 430 U.S.
787 , 794, 799 (1977) (relying on Mandel in declining to
“probe and test the justifications for [a] legislative” distinction
between mothers and fathers because this Court has applied limited
scrutiny to “resolv[e] similar challenges to immigration
legislation based on other constitutional rights of
citizens”).[ 5 ] Indeed, less
than a decade ago, six Justices ruling on the exact legal question
the Court confronts today would have held that Mandel controlled or extended its protections even further in the marriage
context. See Kerry v. Din , 576 U.S.
86 , 103–104 (2015) (Kennedy, J., concurring in judgment) (“The
reasoning and the holding in Mandel control
here. . . . Like the professors who sought an audience
with Dr. Mandel, [respondent] claims her constitutional rights were
burdened by the denial of a visa to a noncitizen, namely her
husband”); id ., at 107 (Breyer, J., dissenting) (reasoning
that respondent’s “liberty interest [in] her freedom to live
together with her husband in the United States” is the kind “to
which the Due Process Clause grants procedural protection”).

															Outside the immigration context, this Court has
endorsed similar tests in circumstances where there is a heightened
underlying governmental power. For instance, in Turner , the
Court evaluated the right to marriage in the prison context. Even
though an incarcerated person “ ‘retains those
[constitutional] rights that are not inconsistent with his status
as a prisoner or with the legitimate penological objectives of the
corrections system,’ ” the Court emphasized that “[t]he right
to marry, like many other rights, is subject to substantial
restrictions as a result of incarceration.” 482 U. S., at 95
(quoting Pell v. Procunier , 417
U.S. 817 , 822 (1974)). Only because the challenged prison
regulation there was not “reasonably related” to the government’s
articulated penological interests, or “legitimate security and
rehabilitation concerns,” did this Court hold it unconstitutional. Turner , 482 U. S., at 95; see id ., at 99.

															Just as Turner looked at burdens on the
right to marriage through the narrow lens of “penological
interests” to defer to the government’s control over prisons, Mandel used a “facially legitimate and bona fide reason” to
defer to the Government’s power over the exclusion of noncitizens.
Neither case erased the constitutional right at issue. The Court
simply recognized that the right can be substantially limited in
areas where the government exercises unusually heightened
control.

															Applying Mandel and Turner here,
the remedy is clear. The Government’s exclusion of Muñoz’s husband
entitles her at least to the remedy required in Mandel : a
“facially legitimate and bona fide reason” for the exclusion. 408
U. S., at 770.

															C

															The majority resists this conclusion by
worrying about its “unsettling collateral consequences.” Ante , at 16. The majority poses a series of hypotheticals
that it fears will result from recognizing the limited right Muñoz
proposes. These fears are groundless.

															First, the majority’s concern that applying Mandel to Muñoz’s right to marriage in this case will result
in a slippery slope of constitutional challenges is unfounded.
Muñoz’s right triggers limited process protections in part because
her husband lost his own procedural protections when the Government
required him to leave the country. Muñoz’s right to marriage raises
that floor from zero process to some by requiring the Government to
provide a “facially legitimate and bona fide reason” when her
husband receives no process. In contrast, a citizen’s liberty
interest “in the removal proceeding of her spouse” in the United
States, ante , at 16, would presumably be limited by the
noncitizen’s own due process rights in that same proceeding.
Similarly, any challenge from a wife to her husband’s
“ ‘assignment to a remote prison,’ ” ibid ., would
presumably be limited by the criminal procedural protections her
husband already received.

															Second, the majority’s reliance on O’Bannon v. Town Court Nursing Center , 447 U.S.
773 (1980), is misplaced and highlights the speculative nature
of its concerns. O’Bannon rejected a freestanding
constitutional interest in avoiding “serious trauma.” Id .,
at 788. The residents of a government-funded nursing home sought
relief from transfer to alternative housing because of the
emotional harm they would suffer from the move. Id ., at
777–781, 784. Muñoz, however, does not rely on a free-floating
emotional harm that separation from her husband will cause. She
invokes her fundamental right to marry, live, and raise a family
with her husband, the right recognized by this Court for centuries.
See supra , at 11–14. Denying her husband entry to the
country directly burdens that right.

															In sum, the majority’s concerns are unwarranted.
There are few circumstances where the limited relief sought by
Muñoz would be available.

															III

															A “facially legitimate and bona fide” reason
may seem like a meager remedy for burdening a fundamental right.
Yet even the barest explanation requirement can be powerful. The
majority relies heavily on United States ex rel. Knauff v. Shaughnessy , 338 U.S.
537 (1950). See ante , at 6–7, 13–14. A closer look at
the story of Ellen Knauff, however, illustrates the importance of
putting the Government to a minimal evidence requirement when a
visa denial burdens a constitutional right.

															Knauff ’s U. S. citizen husband sought
to bring her to the United States after they married during his
deployment to Germany. After this Court upheld her exclusion on
undisclosed national security grounds, there was a public outcry.
See C. Weisselberg, The Exclusion and Detention of Aliens: Lessons
From the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa.
L. Rev. 933, 958–964 (1995). Both Houses of Congress
introduced private bills for her relief and, after the Attorney
General rushed to remove Knauff from Ellis Island before Congress
could act, Justice Jackson (who had vigorously dissented in the
case) issued a stay from this Court. See id ., at 958,
n. 127. After extensive advocacy, the Attorney General ordered
immigration officials to reopen the case. See id ., at
961–962. Eventually, Knauff won her case before the BIA when the
Government failed to prove up its national security concerns. Id ., at 963–964. She was finally admitted as a lawful
permanent resident. Id. , at 964.

															The majority relies heavily on “[t]he rule of Knauff ”: that “the Attorney General has the
unchallengeable power to exclude” a noncitizen. Ibid. ; ante , at 14 (emphasizing that “ ‘[n]o limits can be put
by the courts upon’ ” the exercise of the Government’s power
to “ ‘forbid aliens or classes of aliens from coming within
their borders’ ”). Yet, “the full story of Ellen Knauff shows
a populace and a Congress unwilling to accept the exercise of this
sort of raw power.” Weisselberg, 143 U. Pa. L. Rev., at
964. “Once the government was required to justify its exclusion
decision with substantial and reliable evidence, in an open
proceeding, Knauff gained admission into the United States.” Ibid. Knauff brought her own habeas petition to
challenge her exclusion. Knauff , 338 U. S., at 539–540.
Her husband did not argue that her exclusion burdened his right to
marriage. Twenty-two years after Knauff , however, when faced
with such a challenge, this Court limited the justification that
the Government must provide in these circumstances to a “facially
legitimate and bona fide reason.” Mandel , 408 U. S., at
770. The majority, not content to resolve this case on even those
narrow grounds, instead relieves the Government of any need to
justify itself at all. Knauff ’s story illustrates why the
right to marriage deserves more. By leaving U. S. citizens
without even a factual basis for their spouses’ exclusion, the
majority paves the way for arbitrary denials of a right this Court
has repeatedly held among the most important to our Nation.

															*  *  *

															A traveler to the United States two centuries
ago reported that “ ‘[t]here is certainly no country in the
world where the tie of marriage is so much respected as in
America.’ ” Obergefell , 576 U. S., at 669 (quoting
1 A. de Tocqueville, Democracy in America 309 (H. Reeve transl.,
rev. ed. 1900)). Today, the majority fails to live up to that
centuries-old promise. Muñoz may be able to live with her husband
in El Salvador, but it will mean raising her U. S.-citizen
child outside the United States. Others will be less fortunate. The
burden will fall most heavily on same-sex couples and others who
lack the ability, for legal or financial reasons, to make a home in
the noncitizen spouse’s country of origin. For those couples, this
Court’s vision of marriage as the “assurance that while both still
live there will be someone to care for the other” rings hollow. Obergefell , 576 U. S., at 667. I respectfully
dissent. Notes 1 The Government asked this
Court to review three questions: “1. Whether a consular officer’s
refusal of a visa to a U. S. citizen’s noncitizen spouse
impinges upon a constitutionally protected interest of the citizen.
“2. Whether, assuming that such a constitutional interest exists,
notifying a visa applicant that he was deemed inadmissible under 8
U. S. C. 1182(a)(3)(A)(ii) suffices to provide any
process that is due. “3. Whether, assuming that such a
constitutional interest exists and that citing Section
1182(a)(3)(A)(ii) is insufficient standing alone, due process
requires the government to provide a further factual basis for the
visa denial ‘within a reasonable time,’ or else forfeit the ability
to invoke consular nonreviewability in court.” Pet. for Cert. I.
This Court granted certiorari limited to the first and second
questions. 601 U. S. ___ (2024). The majority chooses to
decide this case on the first question presented rather than
“assuming that such a constitutional interest exists” and
determining what “process . . . is due” (the second
question presented). Pet. for Cert. I. 2 As the majority notes, if
the consular officer denies admission based on “certain grounds
related to crime and national security,” a noncitizen is entitled
to “no explanation” at all. Ante, at 3 (citing 8
U. S. C. §1182(b)(3)). 3 Unlike Justice Gorsuch, I
would vacate and remand the opinion below. The Court of Appeals and
District Court correctly resolved the two questions on which this
Court granted certiorari. The Ninth Circuit nevertheless vacated
the District Court’s judgment and remanded based on the answer to a
third question, which is not before this Court. See supra ,
at 2, n. 1; 50 F. 4th 906, 923–924 (2022) (“Because no ‘fact
in the record’ justifying the denial of Asencio-Cordero’s visa was
made available to [Muñoz and her husband] until nearly three years
had elapsed after the denial, and until after litigation had begun,
we conclude that the government did not meet the notice
requirements of due process when it denied Asencio-Cordero’s
visa”). I would let the Ninth Circuit decide in the first instance
the effect of a Court holding that Muñoz received all the process
she was constitutionally due. 4 Judges created this
doctrine because of the otherwise “strong presumption that Congress
intends judicial review of administrative action.” Bowen v. Michigan Academy of Family Physicians , 476 U.S.
667 , 670 (1986). The majority emphasizes that the Government
asked the Court for the holding it reaches today. See ante, at 6, n. 3. It is hardly unusual for the Government to ask
this Court for less judicial review over its immigration decisions.
See, e . g ., Wilkinson v. Garland , 601
U.S. 209 (2024) (arguing that eligibility for cancellation of
removal is unreviewable); Santos-Zacaria v. Garland ,
598 U.S. 411 (2023) (arguing that noncitizens must request
discretionary forms of administrative review before challenging a
final order of removal in federal court); Patel v. Garland , 596 U.S. 328 (2022) (arguing that federal courts
lack jurisdiction to review facts found as part of eligibility
determination for discretionary relief ); Garland v. Aleman Gonzalez , 596 U.S. 543 (2022) (arguing that district
courts lack jurisdiction to entertain noncitizens’ requests for
class-wide injunctive relief ). Unusually, in this case, the
Government’s argument against review is not based on any statutes
passed by Congress but on a doctrine that this Court created
itself. Rather than exercise the restraint counseled by Mandel , the majority instead chooses to exclude a
fundamental right from Mandel ’s prudent exception. See infra , at 16–19. 5 Despite the majority’s
claim that its decision is the majority rule in the Courts of
Appeals, ante, at 8, and n. 5, lower courts have rarely
reached the question the majority reaches today. That is because
they have relied on Mandel to hold that the Government has
in any case provided a “ ‘facially legitimate and bona
fide’ ” reason. See, e . g ., Sesay v. United States , 984 F.3d 312, 315–316, and n. 2 (CA4
2021); Del Valle v. U. S. Dept. of State , 16 F.
4th 832, 838–842 (CA11 2021); Yafai v. Pompeo , 912
F.3d 1018, 1020–1021 (CA7 2019). One of the cases the majority
cites pre-dates Mandel , Silverman v. Rogers ,
437 F.2d 102 (CA1 1970), and two others reached the majority’s
holding based only on conclusory assertions, see Burrafato v. U. S. Dept. of State , 523 F.2d 554, 555–557 (CA2
1975); Bright v. Parra , 919 F.2d 31, 34 (CA5 1990)
( per curiam ). Only two Circuits have used the
majority’s reasoning to hold that a U. S. citizen’s right to
marriage does not trigger the Mandel remedy. In one, the
court had an alternative holding that “even if we take [the right
to marriage] as a given, the argument fails because the consulate
provided a facially legitimate reason for the visa denials.” Baaghil v. Miller , 1 F. 4th 427, 434 (CA6 2021). In
the other, a concurring judge urged his colleagues to resolve this
challenge on the same narrow holding that the majority could have
followed today. See, e . g ., Colindres v. United States Dept. of State , 71 F. 4th 1018, 1027 (CADC
2023) (opinion of Srinivasan, J.) (“There is no need for us to take
up the merits of [the] constitutional question . . . and
I would refrain from doing so. Rather, we can rest our decision
solely on the ground . . . that even assuming
[appellant’s] fundamental right to marriage includes a protected
interest in living in the country with her husband, such that at
least some form of due process scrutiny applies, the government’s
denial of a visa to him afforded her adequate
process”).