41 A.B.A. J. 1109 (1955)
Consular Non-Reviewability: A Case Study in Administrative Absolutism

handle is hein.journals/abaj41 and id is 1111 raw text is: Consular Non-Reviewability:
A Case Study in Administrative Absolutism
by Harry N. Rosenfield • of the District of Columbia Bar

* In this article, Mr. Rosenfield calls
jurisprudence: United States consular
a visa to an alien. The situation is
refused entry at the behest of the
rights to a hearing, and so, in this instan
office has more power than a Cabinet o
ation is the result of a historical acciden
9 Over thirty years ago, Harlan F.
Stone warned the Bar against the
dangerous experiments in autoc-
racy in this country, in passing nu-
merous laws under which adminis-
trative officers are given extraordi-
nary powers over the liberty and
property  of   individuals  without
those safeguards afforded by judi-
cial review and by our traditional
legal procedure1. As one example
of what he meant, Stone specifically
referred to the deportation aspects
of our immigration laws.
Not long afterwards, Charles Ev-
ans Hughes, in his piesidential ad-
dress before the American Bar As-
sociation on the subject of Liberty
and Law, also warned against offi-
cial caprice:2
 . . we find it necessary ever to be on
the alert against insidious encroach-
ments under the guise of official dis-
cretion.
Since these warnings of the need
for supremacy of the law-that the
agencies of government are no more
free than the private individual to

attention to an anomaly in American           measure, and for the first time in our
fficers have absolute discretion to deny       history, aliens were required to ob-
all the more peculiar because an alien         tain   visas from   American     consular
Attorney   General has certain     statutory   officers stationed abroad, in order to
cc, a subordinate in an American consul's      apply    for  entry   into   the  United
officer. Mr. Rosenfield says that this situ-   States.' This administrative require-
t and he urges a change in the law.            nent was given      statutory form     in
1918 as a temporary war-time meas-
act according to their arbitrary will        ure;5 in 1919 it was temporarily ex-
or  whim,3    we   have    witnessed   a    tended;0 in    1921 it was continued
major development of adininistra-            indefinitely after the war;7 and was
tive law in the United States. Hard-         written into the basic immigration
won rights of administrative and ju-         aw in 19248 and in 1952.9
dicial review     over  the   actions of        Although this new      administrative
officials and   official agencies have       procedure was developing         contem-
been    established. Yet,     a   unique     poraneously with        the mounting
vestige of administrative absolutism         struggle for internal administrative,
remains, an     anachronistic survival       and external judicial, review      of ad-
of executive     autocracy   which    has    ministrative actions, it is the gen-
persistently resisted   the application      erally  accepted    current view     that
of either administrative or judicial         there can he neither administrative
review   procedures which have been          nor judicial review       of actions by
evolved for other fields of adminis-         American consular officers in deny-
trative adjudications.                       ing visas to aliens seeking to enter
In  1917, as a war-time security          the United Statesl0, even where the
1. Stone, NEw   JERSEY SrA'E Ba AssN.     priation bill.)
YEAesoox (1921-22) 49, 60.                     8. Act of May 26, 1924, See. 2, 43 Stat. 153.
2. Hugs.e 50 A.B A. REP. 183, 189 (1925).  8 U.S.C. 202. See Executive Order No. 4125,
3. Stone, The Common Law in the United     January 12, 1925.
States, 50 HAz. L. REV. 4. 17 (1936).         9. Immigration and Nationality Act of 1952,
4. Joint Order of Department of State and  Act of June 27, 1952, See. 211, 215, 66 Stat. 181,
Department of Labor, Requiring Passports and  190, 8 U.S.C. 1181. 1185
Certain Information from Aliens Who Desire     10. U.S. ex rel. Ulrich v. Kellogg, 30 F.
To Enter the United States During the War,   2d 984 (App. D.C. 1929), cert. denied 279
July 26, 1917.                               U.S. 868, 49 S. Ct, 482, 73 L. ed 1005 (1929)
5. Art of May 22, 1918, 40 Stat. 559, 22   (mandamus to direct Secretary of State to
U.S.C. 223-226(b). See President's Proclama-  direct consul to Issue visa, denied). US. ex
tion No. 1473. August 8, 1918.               rel. Santarelli v. Hughes 116 F 2d 613 (3d
6. Act of Nov. 10, 1919, 41 Stat. 353 (This  Cir. 1940),  (dicta); Segat  v. Marshall,
ureported   (D.C.   May   25,  1949,  Civ.
act never went into effect.) The Act of      Action No. 2758-'4); 3 HAcxwoRTH, DxazsT op
June 4, 1920, 41 Stat. 750 set fees for visas  INTElarArioiAL LAW (1942) 723; Oppenheimer,
7. Act of March 2. 1921, 41 Stat. 1217, 22  The Constitutienal Rights of Aliens, 1 B or
U.S.C. 227. (This was a rider on an appro-    Rrs. REv. 160, 101 (1941); 52 HARV. L. Rev. 833

December, 1955 - VoL 41 1109

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