Debunking Disregarding Visa Law

someone posted:

Judge Jinsook Ohta, a Biden appointee born in South Korea, ruled that the State Department must open registration immediately after it failed to do so on time. The program gives permanent residency to people from countries with historically low immigration rates to the United States, including many in Africa and the Middle East. The administration had suspended the lottery after a recipient was linked to deadly shootings. Ohta called the delay arbitrary and unlawful and ordered it restarted.

Someone asked:

How does one person in the judicial branch of government force the executive branch of government to do something?

I answered:

in Marbury v Madison, SCOTUS ruled that the judicial branch has the authority to compel the executive branch not to do something illegal.

Yet another person replied to me:

her order is illegal. The Executive Branch has plenary power of the Visa system, per the law. The law does not subject Visa decisions to judicial or legislative review.

I replied:

Dear Attorney Corey,

With respect, your assertion that Judge Ohta's order is illegal does not follow from the premise that the Executive Branch has broad authority over visas.

The distinction is between discretion to make individual visa decisions and authority to disregard statutory obligations imposed by Congress.

Congress created the Diversity Visa program in 8 U.S.C. § 1153(c). The fact that the Secretary of State administers the program does not, by itself, give the Secretary unlimited discretion to suspend it or ignore the governing law. 8 U.S.C. § 1153.

You are correct that judicial review of individual visa decisions is sharply restricted under the doctrine of consular nonreviewability. But that doctrine is not a blanket prohibition on judicial review of every government action involving immigration. A challenge to an agency's failure to administer a statutory program is legally distinct from asking a court to overturn a consular officer's decision to grant or deny a particular visa.

The Supreme Court addressed this fundamental distinction in Marbury v. Madison (1803). Chief Justice Marshall explained that when Congress imposes a specific legal duty on an executive official, the official cannot simply disregard it at discretion. The case established the principle of judicial review, although the Court actually denied Marbury the particular remedy he sought. Marbury v. Madison, 5 U.S. 137, 166 (1803).

More recently, in Department of Homeland Security v. Regents of the University of California (2020), the Supreme Court reaffirmed that even when the Executive has authority to change immigration policy, its actions remain subject to applicable statutory constraints and the Administrative Procedure Act's requirements for reasoned decision-making. 591 U.S. 1 (2020).

Judge Ohta issued a preliminary injunction after finding the challengers were entitled to relief at this stage of the litigation. Whether that ruling will survive an appeal is a separate question. But an attorney's disagreement with a judge's interpretation of the law does not, by itself, make the resulting order illegal.

If you believe this particular order exceeds the court's jurisdiction or conflicts with a specific statutory provision barring judicial review of this particular agency action, I would welcome the citation to that provision and an explanation of how it applies to the failure to open the lottery.

Broad executive authority is not the same thing as authority beyond the law. That distinction is fundamental to our constitutional system.