A Rejoinder to Jeff Kahn on Latif and Fundamental Rights

In Jeff Kahn’s response today to my post last week about American citizens’ right not to be stranded abroad by their government, Jeff asks more about my views: “Is international travel the same two-way street for her that it is for me?  And do we see the same value in judicial review?”  So I thought I’d explain my views a little bit further.  I argued Thursday that the right against banishment is absolute—that the U.S. government must allow its citizens to come home.  For me, at least, that right against banishment is quite substantially more muscular than the rights Jeff identifies.

Start with the right to travel.  We have 850,000 adults on parole in this county.  A common parole requirement, enforced by threat of re-imprisonment, is a limit on the right to travel, both interstate and internationally.  So a right to travel as robust as the right against banishment—that is, a right to travel that is never forfeit—would require a radical change to current practice.

And what about the right to judicial review?  I am, like Jeff, enamored of judicial review.  Congress’s provision for judicial review in no-fly cases, under 49 U.S.C. § 46110, seems to me good policy.  But constitutionally compelled?  I’m not so sure.  What process is due, under the 14th or 5th Amendment, is highly context-specific.  And caselaw allows extraordinarily grave deprivations to be visited by the state without judicial oversight.  For example, the Supreme Court in 2005 ratified Ohio’s “informal, nonadversary procedures” as a constitutionally sufficient prerequisite to sending prisoners to long-term confinement in a supermax prison, where “incarceration . . . is synonymous with extreme isolation.”  On the other hand, the Court has “suggested . . . that the Constitution may well preclude granting ‘an administrative body the unreviewable authority to make determinations implicating fundamental rights.’” In 1932, Justice Brandeis (in dissent) noted that “under certain circumstances, the constitutional requirement of due process is a requirement of judicial process.” Is inclusion in the No-Fly List one of those circumstances?  Given that Congress has provided judicial review, it’s a constitutional question unlikely to be answered. 

About the Author(s)

Margo Schlanger

Henry M. Butzel Professor of Law at the University of Michigan, Heads the Civil Rights Litigation Clearinghouse, Former Officer for Civil Rights and Civil Liberties at the Department of Homeland Security (2010-2011) Follow her on Twitter (@mjschlanger).