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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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