(Slip Opinion)              OCTOBER TERM, 2023                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

    DEPARTMENT OF STATE ET AL. v. MUÑOZ ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE NINTH CIRCUIT

       No. 23–334.      Argued April 23, 2024—Decided June 21, 2024
Respondent Sandra Muñoz is an American citizen. In 2010, she married
  Luis Asencio-Cordero, a citizen of El Salvador. The couple eventually
  sought to obtain an immigrant visa for Asencio-Cordero so that they
  could live together in the United States. Muñoz filed a petition with
  U. S. Citizenship and Immigration Services to have Asencio-Cordero
  classified as an immediate relative. See 

(b)(2)(A)(i),
  1154(a)(1)(A). USCIS granted Muñoz’s petition, and Asencio-Cordero
  traveled to the consulate in San Salvador to apply for a visa. See
  §§1154(b), 1202. After conducting several interviews with Asencio-
  Cordero, a consular officer denied his application, citing
  §1182(a)(3)(A)(ii), a provision that 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.”
     Asencio-Cordero guessed that he was denied a visa based on a find-
  ing that he was a member of MS–13, a transnational criminal gang.
  So he disavowed any gang membership, and he and Muñoz pressed the
  consulate to reconsider the officer’s finding. When the consulate re-
  fused, they appealed to the Department of State, which agreed with
  the consulate’s determination. Asencio-Cordero and Muñoz then sued
  the Department of State and others (collectively, State Department),
  claiming that it 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 granted summary judgment to the State De-
  partment, but the Ninth Circuit vacated the judgment, holding that
  Muñoz had a constitutionally protected liberty interest in her hus-
  band’s visa application. Because of that interest, the court said, the
2                 DEPARTMENT OF STATE v. MUÑOZ

                                 Syllabus

    Due Process Clause required the State Department to give Muñoz a
    reason for denying her husband’s visa. The court further held that by
    declining to give Muñoz more information earlier in the process, the
    State Department had forfeited its entitlement to insulate its decision
    from judicial review under the doctrine of consular nonreviewability.
Held: A citizen does not have a fundamental liberty interest in her
 noncitizen spouse being admitted to the country. Pp. 5–18.
    (a) Under the doctrine of consular nonreviewability, an executive of-
 ficer’s decision “to admit or to exclude an alien” “is final and conclu-
 sive,” United States ex rel. Knauff v. Shaughnessy, 

,
 and not subject to judicial review in federal court. This Court has as-
 sumed a narrow exception in cases “when the denial of a visa allegedly
 burdens the constitutional rights of a U. S. citizen.” Trump v. Hawaii,
 

. In that event, the Court has considered whether
 the executive official gave a “facially legitimate and bona fide reason”
 for denying the visa. Kerry v. Din, 

, 103–104.
    Asencio-Cordero cannot invoke the exception himself, thus Muñoz
 must assert that the denial of her husband’s visa violated her consti-
 tutional rights, thereby enabling judicial review. She argues that the
 State Department abridged her fundamental right to live with her
 spouse in her country of citizenship without affording her due process.
 Pp. 5–8.
    (b) Among other things, the Due Process Clause “provides height-
 ened protection against government interference with certain funda-
 mental rights and liberty interests.” Washington v. Glucksberg, 

. When a fundamental right is at stake, the government
 can act only by narrowly tailored means that serve a compelling state
 interest. To identify an unenumerated right, the Court follows the
 two-step inquiry in Glucksberg. That inquiry first insists on a “careful
 description of the asserted fundamental liberty interest.” 

 (internal quotation marks omitted). Second, the inquiry stresses that
 “the Due Process Clause specially protects” only “those fundamental
 rights and liberties which are, objectively, deeply rooted in this Na-
 tion’s history and tradition.” 

 at 720–721 (same).
    Here, Muñoz invokes the “fundamental right to marriage,” but she
 actually claims something more distinct: the right to reside with her
 noncitizen spouse in the United States. That involves more than mar-
 riage and more than spousal cohabitation—it includes the right to
 have her noncitizen husband enter (and remain in) the United States.
 As Muñoz asserts it, she claims “a marital right . . . sufficiently im-
 portant that it cannot be unduly burdened without procedural due pro-
 cess as to an inadmissibility finding that would block her from residing
 with her spouse in her country of citizenship.” Brief for Respondent
 19, n. 10. So described, the asserted right is fundamental enough to
                      Cite as: 

 (2024)                      3

                                 Syllabus

  be implicit in “liberty;” but, unlike other implied fundamental rights,
  its deprivation does not trigger strict scrutiny.
     Because Muñoz cannot clear the second step of Glucksberg, the
  Court need not decide whether such a category of implied rights pro-
  tected by the Due Process Clause exists. Glucksberg requires a demon-
  stration that the asserted right be “deeply rooted in this Nation’s his-
  tory and tradition.” 

. This Nation’s history and
  tradition recognizes 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 this Nation’s beginnings, the admission of noncitizens into the
  country was characterized as “of favor [and] not of right.” J. Madison,
  Report of 1800. And when Congress began to restrict immigration in
  the late 19th century, the laws it enacted provided no exceptions for
  citizens’ spouses. See, e.g., Page Act of 1875, 18 Stat. 477–478; Immi-
  gration Act of 1882, 

; Immigration Act of 1891, 

. And while Congress has, on occasion, extended special immigra-
  tion treatment to marriage, see, e.g., War Brides Act of 1945, 

, it has never made spousal immigration a matter of right.
     This Court has not interfered with such policy choices, despite their
  interference with the spousal relationship. Thus in United States ex
  rel. Knauff v. Shaughnessy, 

, the Court reaffirmed, in the
  case of a noncitizen spouse who was denied admission for confidential
  security reasons, the longstanding principle “that the United States
  can, as a matter of public policy . . . forbid aliens or classes of aliens
  from coming within [its] borders,” and “[n]o limits can be put by the
  courts upon” that power. Wong Wing v. United States, 

. Pp. 8–15.
     (c) Muñoz’s claim to a procedural due process right in someone else’s
  legal proceeding would have unsettling collateral consequences. Her
  position would usher in a new strain of constitutional law—one that
  prevents the government from taking actions that “indirectly or inci-
  dentally” burden a citizen’s legal rights. Castle Rock v. Gonzales, 

. See, e.g., O’Bannon v. Town Court Nursing Center, 

. To be sure, 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 proceeding.
  Pp. 15–18.

, reversed and remanded.

  BARRETT, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, and KAVANAUGH, JJ., joined. GORSUCH, J.,
4               DEPARTMENT OF STATE v. MUÑOZ

                               Syllabus

filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dis-
senting opinion, in which KAGAN and JACKSON, JJ., joined.
                        Cite as: 

 (2024)                              1

                             Opinion of the Court

     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 Court of the United States, Washington, D. C. 20543,
     [email protected], of any typographical or other formal errors.


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
2               DEPARTMENT OF STATE v. MUÑOZ

                         Opinion of the Court

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,

, 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. 

, 

(a).
Visa decisions are made by the political branches. Trump
v. Hawaii, 

, 702–703 (2018); see also Oceanic
Steam Nav. Co. v. Stranahan, 

 (1909) (ex-
plaining 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 Em-
bassies 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 nonciti-
zen classified as an immediate relative. See Scialabba v.
——————
  1 We describe the process for noncitizens who, like Asencio-Cordero,

have not yet been lawfully admitted to the United States and must there-
fore apply from abroad. Compare 

(a) (adjustment of sta-
tus to lawful permanent resident for noncitizens already admitted into
the United States) with 

, 42.62 (2023) (noncitizens apply-
ing for immigrant visa must appear in person before consular officer in
consular district of residence).
                  Cite as: 

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                      Opinion of the Court

Cuellar de Osorio, 

, 46–47 (2014) (plurality
opinion); §§1151(b)(2)(A)(i), 1154(a)(1)(A). If USCIS ap-
proves the petition, then the noncitizen may apply for a
visa. §§1201(a), 1202(a). As part of this process, the noncit-
izen submits written materials and interviews with a con-
sular officer abroad. §§1201(a)(1), 1202.
   Ordinarily, a consular officer who denies a visa applica-
tion “because the officer determines the alien to be inadmis-
sible” must “provide the alien with a timely written notice
that . . . (A) states the determination, and (B) lists the spe-
cific provision or provisions of law under which the alien is
inadmissible.” §1182(b)(1). The statute requires no expla-
nation, 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 ex-
ception 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;

. He met with a consular officer in San Salvador
and underwent several interviews.
   In December 2015, the officer denied Asencio-Cordero’s
application, citing 

(a)(3)(A)(ii).        That
provision renders inadmissible a noncitizen whom the of-
ficer “knows, or has reasonable ground to believe, seeks to
enter the United States to engage solely, principally, or in-
cidentally in” certain specified offenses or “any other unlaw-
ful activity.” 

 The officer provided no additional
4            DEPARTMENT OF STATE v. MUÑOZ

                     Opinion of the Court

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
                     Cite as: 

 (2024)                    5

                          Opinion of the Court

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. 

, 916 (2022) (quoting Kleindienst v.
Mandel, 

, 766–770 (1972)). The initial
statutory citation did not qualify, 50 F. 4th, at 917–918, and
the later affidavit was untimely, 

 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
——————
  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 in-
admissible under the “unlawful activity” bar. Tr. of Oral Arg. 59–64.
Elsewhere, though, she suggests that the Due Process Clause entitles
6                DEPARTMENT OF STATE v. MUÑOZ

                           Opinion of the Court

  The Ninth Circuit denied en banc review over the dissent
of 10 judges, and we granted the State Department’s
petition for certiorari. 

 (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, 

 (quoting Fiallo
v. Bell, 

 (1977)). Congress may delegate
to executive officials the discretionary authority to admit
noncitizens “immune from judicial inquiry or interference.”
Harisiades v. Shaughnessy, 

, 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, 

(1950); see also Dept. of Homeland Security v.
Thuraissigiam, 

, 138–139 (2020); Mandel, 408
U. S., at 765–766; Nishimura Ekiu v. United States, 

, 659–660 (1892). The Judicial Branch has no role

——————
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 inadmis-
sibility finding and a court order requiring the State Department to re-
consider Asencio-Cordero’s visa application. 50 F. 4th, at 912, n. 14.
This level of judicial involvement in the visa process would be a signifi-
cant 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 im-

properly to settle this issue. Post, at 2. We granted certiorari on this
very question to resolve a longstanding circuit split. 

 (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 im-
migration law and the importance of this issue to national security. Pet.
for Cert. 27–28, 31–33.
                     Cite as: 

 (2024)                     7

                          Opinion of the Court

to play “unless expressly authorized by law.” Knauff, 

. 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, 

. 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, 

, 103–104
(2015) (Kennedy, J., concurring in judgment) (quoting
Mandel, 

). 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, 

.
   Asencio-Cordero cannot invoke the exception himself,
because he has no “constitutional right of entry to this
country as a nonimmigrant or otherwise.” Mandel, 

. 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
——————
   4 In Trump v. Hawaii, the plaintiffs argued that a proclamation exclud-

ing certain classes of noncitizens from entering the United States ex-
ceeded the President’s authority under the Immigration and Nationality
Act. 

, 681–682 (2018). The Court explained that the doc-
trine of consular nonreviewability is not jurisdictional and “assume[d]
without deciding that [the] plaintiffs’ statutory claims [were] reviewa-
ble.” 

 at 682–683.
8               DEPARTMENT OF STATE v. MUÑOZ

                          Opinion of the Court

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, 

 (CADC 2023); Baaghil
v. Miller, 

 (CA6 2021); Bakran v. Secretary,
U. S. Dept. of Homeland Security, 

 (CA3
2018); Bright v. Parra, 

 (CA5 1990)
(per curiam); Burrafato v. U. S. Dept. of State, 

, 554–557 (CA2 1975); Silverman v. Rogers, 

 (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. 

.
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. 

 (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
——————
   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.
                  Cite as: 

 (2024)             9

                      Opinion of the Court

interests.” Glucksberg, 

. When a
fundamental right is at stake, the Government can act only
by narrowly tailored means that serve a compelling state
interest. 

. 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.” 

 (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.” 

 (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.” 

 at 720–721
(internal quotation marks omitted).
   We start with a “careful description of the asserted
fundamental liberty interest.”          

 (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
10            DEPARTMENT OF STATE v. MUÑOZ

                      Opinion of the Court

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, 

 (“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 char-
acterizing the asserted right a conceptually harder task.
Here is her formulation: a “marital right . . . sufficiently im-
portant that it cannot be unduly burdened without proce-
dural due process as to an inadmissibility finding that
would block her from residing with her spouse in her coun-
try of citizenship.” Brief for Respondents 19, n. 10. So de-
scribed, the asserted right is neither fish nor fowl. It is fun-
damental enough to be implicit in “liberty;” but, unlike
other implied fundamental rights, its deprivation does not
trigger strict scrutiny. See Din, 

 (plurality
opinion) (observing that this argument posits “two catego-
ries 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. 

   We need not decide whether such a category exists, be-
cause 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.’ ” 

. On the
contrary, the through line of history is recognition of the
Government’s sovereign authority to set the terms
                  Cite as: 

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                      Opinion of the Court

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.” 

(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, 

 (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.” 

. 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.
12              DEPARTMENT OF STATE v. MUÑOZ

                          Opinion of the Court

Immigration Act of 1891, ch. 551, 

.
   There are other examples. The Page Act of 1875, which
functioned as a restriction on Chinese female immigration,
contained no exception for wives. 18 Stat. 477–478; see
Colindres, 

. Or consider the Emergency
Quota Act of 1921, which capped the number of immigrants
permitted to enter the country each year. 42 Stat. 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, 

(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. 

 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, 

. Closer to home, Asencio-Cordero’s visa
——————
  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? 

, 11 (2013) (Abrams). (“Giving wives the
opportunity to sponsor their husbands would have been nonsensical; un-
der the Expatriation Act of 1907, a wife automatically lost her US citi-
zenship 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 citizen-
ship for married women.” 

                  Cite as: 

 (2024)            13

                      Opinion of the Court

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, 

(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, 

. 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, 

, 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.” 

. We held that the
War Brides Act did not supersede the statute on which the
Attorney General had relied. 

 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.” 

. Nor was she
entitled to a hearing, because “[w]hatever the procedure
14               DEPARTMENT OF STATE v. MUÑOZ

                          Opinion of the Court

authorized by Congress is, it is due process as far as an
alien denied entry is concerned.” 

. The Attorney
General’s decision was “final and conclusive,” and he did
not have to divulge the reason for it. 

. 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, 

(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, 

 (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
——————
   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. More-
over, Knauff remains good law that we have repeatedly reaffirmed. Dept.
of Homeland Security v. Thuraissigiam, 

, 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 seek-
ing entry to the United States pose a threat to national security, post, at
6–7. Perhaps our dissenting colleagues are well-equipped to set immi-
gration policy and manage border security, but the Constitution entrusts
                     Cite as: 

 (2024)                   15

                          Opinion of the Court

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, 

.
    To be sure, Congress can use its authority over
immigration to prioritize the unity of the immigrant family.
Din, 

 (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, 

 (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
——————
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 rhetor-
ically easier path of charging the Court with endangering the fundamen-
tal 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, includ-
ing those protecting marriage as a fundamental right. By contrast, the
dissent would upend more than a century’s worth of this Court’s prece-
dent regarding the doctrine of consular nonreviewability, not to mention
equally longstanding congressional and Executive Branch practice. 

16            DEPARTMENT OF STATE v. MUÑOZ

                      Opinion of the Court

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 “indi-
rectly or incidentally” burden a citizen’s legal rights. Castle
Rock v. Gonzales, 

 (2005) (quoting
O’Bannon v. Town Court Nursing Center, 

(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. 

, and n. 16. But we held that absent a “direct restraint
on [their liberty],” the decision did not implicate their due
process rights. 

. 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.” 

 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.” 

 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
                  Cite as: 

 (2024)           17

                      Opinion of the Court

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. 

. 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.”

. 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.” 

    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.            

(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
18            DEPARTMENT OF STATE v. MUÑOZ

                      Opinion of the Court

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, 

.
   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.
                  Cite as: 

 (2024)             1

               GORSUCH, J., concurring in judgment

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. 

, 713–714 (CD Cal. 2021). In doing so, the
officer simply cited 

(a)(3)(A)(ii), a provision
of the Immigration and Nationality Act that makes inad-
missible 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. 

.
  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. 

, 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 govern-
ment denied the last application. Tr. of Oral Arg. 45, 104.
2             DEPARTMENT OF STATE v. MUÑOZ

               GORSUCH, J., concurring in judgment

  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 lit-
igation. In particular, the constitutional questions pre-
sented by the government no longer have any practical rel-
evance here.       Whether or not Ms. Muñoz had a
constitutional right to the information she wanted, the gov-
ernment gave it to her. I therefore would reverse the Ninth
Circuit’s decision without reaching the government’s con-
stitutional arguments. See City of Mesquite v. Aladdin’s
Castle, Inc., 

, 294–295 (1982). At the same
time, I do not cast aspersions on the motives of my col-
leagues 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.
                  Cite as: 

 (2024)            1

                   SOTOMAYOR, J., dissenting

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, 

(2015). After U. S. citizen Sandra Muñoz and her Salva-
doran 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 Salva-
dor. 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 ac-
tivity.” 

(a)(3)(A)(ii). Muñoz argues that the
Government, having burdened her fundamental right to
marriage, owes her one thing: the factual basis for exclud-
ing her husband.
   The majority could have resolved this case on narrow
grounds under longstanding precedent. This Court has al-
ready recognized that excluding a noncitizen from the coun-
try can burden the constitutional rights of citizens who seek
his presence. See Kleindienst v. Mandel, 

,
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. 

. In this case,
2                DEPARTMENT OF STATE v. MUÑOZ

                        SOTOMAYOR, J., dissenting

after protracted litigation, the Government finally ex-
plained that it denied Muñoz’s husband a visa because of
its belief that he had connections to the gang MS–13. Re-
gardless of the validity of that belief, it is a “facially legiti-
mate 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 along-
side her husband entitles her to nothing when the Govern-
ment 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 en-
trenched 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

——————
 1 The Government asked this Court to review three questions:

        “1. Whether a consular officer’s refusal of a visa to a U. S. citi-
     zen’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 fac-
     tual basis for the visa denial ‘within a reasonable time,’ or else for-
     feit the ability to invoke consular nonreviewability in court.” Pet.
     for Cert. I.
This Court granted certiorari limited to the first and second questions.

 (2024). The majority chooses to decide this case on the first
question presented rather than “assuming that such a constitutional in-
terest exists” and determining what “process . . . is due” (the second ques-
tion presented). Pet. for Cert. I.
                 Cite as: 

 (2024)            3

                   SOTOMAYOR, J., dissenting

Health Organization, 

, 256–257 (2022). Be-
cause, to me, there is no question that excluding a citizen’s
spouse burdens her right to marriage, and that burden re-
quires 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 se-
ries of administrative hoops to apply for the lawful perma-
nent 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 re-
quires 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 im-
migration 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 ap-
plying for a green card seeks to “[a]djus[t]” his immigration
“status” from “nonimmigrant to that of [a] person admitted
for permanent residence.” 

. To do so, the
citizen spouse must petition the Government on the noncit-
izen’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 perma-
nent 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 peti-
tion, but then sends it to the consulate of the country where
4            DEPARTMENT OF STATE v. MUÑOZ

                   SOTOMAYOR, J., dissenting

the noncitizen spouse lives for processing. See §1154(b); 

, 42.61 (2023). A consular officer interviews
the noncitizen spouse and makes the final admission deci-
sion. See 

, 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, mar-
ries, 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 

, 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 na-
tional community. Recipients under the Deferred Action for
Childhood Arrivals (DACA) program, for instance, may
have been brought across the border by their parents with-
out inspection. Even though DACA status entitles them to
work and live in the country without the immediate threat
of removal, see 

(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 una-
ble to return to their home countries because of war, natu-
ral disasters, or other extraordinary circumstances. See
                  Cite as: 

 (2024)            5

                   SOTOMAYOR, J., dissenting

DHS, Citizenship and Immigration Services Ombudsman,
Ann. Rep. 45 (June 30, 2023); Sanchez v. Mayorkas, 

 (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 en-
tered without inspection. See 

(a).
   Ironically, the longer the noncitizen spouse has lived in
the United States, the more difficult and uncertain the pro-
cess to adjust to lawful status can become. A noncitizen
who initially entered without inspection will accrue “unlaw-
ful presence,” which can bar him from reentering the coun-
try 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 noncit-
izen spouse but face a potential multiyear exile when he
leaves and applies for reentry.
   Recognizing this difficult choice, USCIS allows a nonciti-
zen 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
6               DEPARTMENT OF STATE v. MUÑOZ

                       SOTOMAYOR, J., dissenting

inadmissibility bar.
   Consular officers fall under the State Department, see
§1104(a), not DHS, which oversees USCIS, see 

(a). Even though DHS officers and consular officers
make admission determinations under the same substan-
tive laws, see §1182, in reality, a noncitizen seeking admis-
sion via consular processing faces a far higher risk of arbi-
trary 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 

(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 require-
ments 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 fac-
tors”). 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 ad-
versarial 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 

(b), and, ultimately, a federal court
of appeals, see 

(a).
   In contrast, a noncitizen denied admission via consular
processing is entitled to nothing more than a cite to the stat-
ute under which the consular officer decided to exclude him.
§1182(b)(1).2 He has no opportunity for administrative or
——————
  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 

(b)(3)).
                  Cite as: 

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                    SOTOMAYOR, J., dissenting

judicial review, and can only submit more evidence and re-
quest reconsideration. 

(e). Former consular
officers tell this Court that this lack of accountability, cou-
pled 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 misfor-
tune of which diplomatic post and consular officer . . . they
happen to be assigned.” 

 at 8–9. The State Depart-
ment’s Office of the Inspector General has documented nu-
merous 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 man-
agers 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 Em-
bassy 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 mar-
riage, 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 An-
geles, California, met Luis Asencio-Cordero in 2008, three
years after he had arrived in the United States. They have
8             DEPARTMENT OF STATE v. MUÑOZ

                    SOTOMAYOR, J., dissenting

been married since 2010 and have a child together. In 2013,
Muñoz filed an immediate-relative petition for her hus-
band, which USCIS approved. Because Asencio-Cordero
had originally entered the United States without inspec-
tion, 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 ex-
cluded. 

(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 con-
sular officer denied his visa application. As justification,
the denial cited only to §1182(a)(3)(A)(ii). That statute pro-
vides 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 unspec-
ified 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 

, 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
                  Cite as: 

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                   SOTOMAYOR, J., dissenting

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 at-
testations of Asencio-Cordero’s good moral character. A few
days later, the consulate notified Muñoz that the State De-
partment 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 request-
ing 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, Sig-
mund Freud, a ‘tribal’ pattern with a paw print, and theat-
rical 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 Schol-
ars 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 

 (noting that “law enforcement agencies
and officials often use tattoos of common Catholic imagery
. . . as indicia of gang membership”). Speculating about po-
tential bases for a visa denial, Muñoz and her husband in-
cluded additional evidence from a court-approved gang ex-
pert 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 applica-
tion and noting that “ ‘there is no appeal.’ ” Ibid.
10               DEPARTMENT OF STATE v. MUÑOZ

                       SOTOMAYOR, J., dissenting

    It was only after Muñoz and her husband sued the Gov-
ernment 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 dec-
laration 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 legiti-
mate 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 pe-
tition for a writ of certiorari. 

 (2024).
                             II
  There was a simple way to resolve this case. I agree with
JUSTICE GORSUCH that “the United States has now re-
vealed the factual basis for its decision to deny [Muñoz’s]
husband a visa,” and she has thus received whatever pro-
cess she was due. Ante, at 1 (opinion concurring in judg-
ment).3 That could and should have been the end of it. In-
stead, the majority swings for the fences. It seizes on the
——————
  3 Unlike JUSTICE GORSUCH, I would vacate and remand the opinion be-

low. The Court of Appeals and District Court correctly resolved the two
questions on which this Court granted certiorari. The Ninth Circuit nev-
ertheless 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; 

, 923–924 (2022) (“Because no ‘fact in the record’
justifying the denial of Asencio-Cordero’s visa was made available to
                      Cite as: 

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                       SOTOMAYOR, J., dissenting

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 exclu-
sion, the majority departs from longstanding precedent and
gravely undervalues the right to marriage in the immigra-
tion context.
                                A
   The constitutional right to marriage has deep roots.
“[M]arriage,” this Court said over a century ago, “is some-
thing more than a mere contract.” Maynard v. Hill, 

, 210–211 (1888). It is “the most important rela-
tion in life,” 

, and “the foundation of the family,”

. This Court has described it in one breath as the
right “to marry, establish a home and bring up children,” a

——————
[Muñoz and her husband] until nearly three years had elapsed after the
denial, and until after litigation had begun, we conclude that the govern-
ment 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.
12            DEPARTMENT OF STATE v. MUÑOZ

                    SOTOMAYOR, J., dissenting

right “long recognized at common law as essential to the or-
derly pursuit of happiness by free men.” Meyer v. Nebraska,

 (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 em-
phasized that “[m]arriage is one of the ‘basic civil rights of
man,’ fundamental to our very existence and survival.” Lov-
ing v. Virginia, 

 (1967) (quoting Skinner v.
Oklahoma ex rel. Williamson, 

 (1942)).
Indeed, the right to marriage was one of the first building
blocks of substantive due process. The right was so “ ‘fun-
damental’ ” and “ ‘implicit in the concept of ordered liberty’ ”
that the Roe Court invoked it as part of the foundation un-
derlying the right to abortion. Roe v. Wade, 

,
152–153 (1973) (cataloguing existing substantive due pro-
cess rights as extending to “marriage, procreation, contra-
ception, family relationships, and child rearing and educa-
tion” (citations omitted)), overruled, Dobbs, 

.
    Almost 10 years ago, this Court vindicated the expansive-
ness 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. Re-
jecting 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, 

. Marriage
“ ‘fulfils yearnings for security, safe haven, and connection
that express our common humanity.’ ” 

. “Mar-
riage 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.” 

.
    The majority, ignoring these precedents, makes the same
                  Cite as: 

 (2024)            13

                    SOTOMAYOR, J., dissenting

fatal error it made in Dobbs: requiring too “ ‘careful [a] de-
scription of the asserted fundamental liberty interest.’ ”
Ante, at 9 (quoting Washington v. Glucksberg, 

 (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 characteriza-
tion.” 

   Obergefell rejected what the majority does today as “in-
consistent with the approach this Court has used in discuss-
ing [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 sup-
port 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, 

.
   This Court has never required that plaintiffs be fully pre-
vented from exercising their right to marriage before invok-
ing it. Instead, the question is whether a challenged gov-
ernment action burdens the right. For example, the Court
in Zablocki v. Redhail, 

 (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
14            DEPARTMENT OF STATE v. MUÑOZ

                    SOTOMAYOR, J., dissenting

granted permission to marry. 

 at 387–388. The Court
in Turner v. Safley, 

 (1987), applied Zablocki to
incarcerated people to hold that the particular prison mar-
riage restriction at issue “impermissibly burden[ed] the
right to marry.” 

. There can be no real ques-
tion that excluding a citizen’s spouse from the country “bur-
dens” the citizen’s right to marriage as this Court has re-
peatedly defined it. This Court has never held that a
married couple’s ability to move their home elsewhere re-
moves 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 cou-
ples who, like the Lovings and the Obergefells, depend on
American law for their marriages’ validity. Same-sex cou-
ples may be forced to relocate to countries that do not rec-
ognize same-sex marriage, or even those that criminalize
homosexuality. American husbands may be unable to fol-
low 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 nonciti-
zen husbands” until 1952)). The majority’s failure to re-
spect the right to marriage in this country consigns U. S.
citizens to rely on the fickle grace of other countries’ immi-
gration laws to vindicate one of the “ ‘basic civil rights of
man’ ” and live alongside their spouses. Loving, 

.
                             B
  Given that the Government has burdened Muñoz’s right
to marriage by excluding her husband from the country, the
                  Cite as: 

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                   SOTOMAYOR, J., dissenting

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 Govern-
ment’s exercise of its extensive power over the exclusion of
noncitizens burdens a U. S. citizen’s constitutional rights.
See 

. In short, a fundamental right may trigger
procedural due process protections over a noncitizen’s ex-
clusion, but such protections are limited. See 

   Noncitizens who apply for visas from outside the United
States have no constitutional entitlement to enter the coun-
try, and therefore typically have no constitutional process
protections in the visa application themselves. See Landon
v. Plasencia, 

 (1982). In contrast, nonciti-
zens who already live in the United States whom the Gov-
ernment seeks to remove have procedural due process pro-
tections during that removal. See Yick Wo v. Hopkins, 

 (1886); Zadvydas v. Davis, 

(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 protec-
tions in those proceedings. Instead, because the Govern-
ment 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 appli-
cations. 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
16               DEPARTMENT OF STATE v. MUÑOZ

                        SOTOMAYOR, J., dissenting

recognition that the “ ‘admission and exclusion of foreign
nationals’ ” is an area of unusually heightened congres-
sional and executive power. Ante, at 6–7.4 When the de-
nial of a noncitizen’s visa burdens a U. S. citizen’s constitu-
tional rights, however, this Court has had to reconcile the
importance of those rights with its recognition of Govern-
ment authority over visa determinations. In Mandel, it set
the remedy. The Mandel Court held that when a visa de-
nial “implicate[s]” a citizen’s rights, a court will not look be-
hind a “facially legitimate and bona fide” reason for the de-
nial. 

.
   In Mandel, a group of U. S. professors sued the Govern-
ment over the visa denial of Dr. Ernest E. Mandel, a famous
Belgian Marxist. See 

, 759–760. The professors
argued that excluding Mandel burdened their First Amend-
ment right to hear and meet with him in person. See 

. The Court agreed that the professors had a First
Amendment “ ‘right to receive information’ ” from Mandel.
——————
   4 Judges created this doctrine because of the otherwise “strong pre-

sumption that Congress intends judicial review of administrative ac-
tion.” Bowen v. Michigan Academy of Family Physicians, 

 (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, 

 (2024) (arguing that eligibility for cancellation of removal is unre-
viewable); Santos-Zacaria v. Garland, 

 (2023) (arguing that
noncitizens must request discretionary forms of administrative review
before challenging a final order of removal in federal court); Patel v. Gar-
land, 

 (2022) (arguing that federal courts lack jurisdiction
to review facts found as part of eligibility determination for discretionary
relief ); Garland v. Aleman Gonzalez, 

 (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 Con-
gress but on a doctrine that this Court created itself. Rather than exer-
cise the restraint counseled by Mandel, the majority instead chooses to
exclude a fundamental right from Mandel’s prudent exception. See in-
fra, at 16–19.
                  Cite as: 

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                    SOTOMAYOR, J., dissenting

. It also emphasized, as the majority does
today, Congress’s power over the admission and exclusion
of noncitizens. See 

 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 in-
form Mandel’s counsel of the reason for refusing him a
waiver. And that reason was facially legitimate and bona
fide.” 

 (emphasis added). Therefore, “when the
Executive exercises [conditional power to exclude] nega-
tively on the basis of a facially legitimate and bona fide rea-
son, 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.” 

. In other
words, when a visa denial burdens a noncitizen’s constitu-
tional 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.”

 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 Gov-
ernment 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, 

 (2018) (noting that “this Court has engaged in a
circumscribed judicial inquiry when the denial of a visa al-
legedly burdens the constitutional rights of a U. S. citizen”);
Fiallo v. Bell, 

 (1977) (relying on
Mandel in declining to “probe and test the justifications for
[a] legislative” distinction between mothers and fathers be-
cause this Court has applied limited scrutiny to “resolv[e]
18               DEPARTMENT OF STATE v. MUÑOZ

                       SOTOMAYOR, J., dissenting

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 con-
trolled or extended its protections even further in the mar-
riage context. See Kerry v. Din, 

, 103–104
(2015) (Kennedy, J., concurring in judgment) (“The reason-
ing and the holding in Mandel control here. . . . Like the
professors who sought an audience with Dr. Mandel, [re-
spondent] claims her constitutional rights were burdened
by the denial of a visa to a noncitizen, namely her hus-
band”); 

 (Breyer, J., dissenting) (reasoning that
——————
   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 pro-
vided a “ ‘facially legitimate and bona fide’ ” reason. See, e.g., Sesay v.
United States, 

, 315–316, and n. 2 (CA4 2021); Del Valle v.
U. S. Dept. of State, 

, 838–842 (CA11 2021); Yafai v. Pom-
peo, 

, 1020–1021 (CA7 2019). One of the cases the major-
ity cites pre-dates Mandel, Silverman v. Rogers, 

 (CA1
1970), and two others reached the majority’s holding based only on con-
clusory assertions, see Burrafato v. U. S. Dept. of State, 

,
555–557 (CA2 1975); Bright v. Parra, 

 (CA5 1990) (per cu-
riam). 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, 

 (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, 

 (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”).
                  Cite as: 

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                   SOTOMAYOR, J., dissenting

respondent’s “liberty interest [in] her freedom to live to-
gether with her husband in the United States” is the kind
“to which the Due Process Clause grants procedural protec-
tion”).
   Outside the immigration context, this Court has en-
dorsed 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 “ ‘re-
tains those [constitutional] rights that are not inconsistent
with his status as a prisoner or with the legitimate penolog-
ical objectives of the corrections system,’ ” the Court empha-
sized that “[t]he right to marry, like many other rights, is
subject to substantial restrictions as a result of incarcera-
tion.” 

 (quoting Pell v. Procunier, 

 (1974)). Only because the challenged prison regu-
lation there was not “reasonably related” to the govern-
ment’s articulated penological interests, or “legitimate se-
curity and rehabilitation concerns,” did this Court hold it
unconstitutional. Turner, 

; see 

.
   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 “fa-
cially legitimate and bona fide reason” to defer to the Gov-
ernment’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 lim-
ited 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. 

.
20            DEPARTMENT OF STATE v. MUÑOZ

                    SOTOMAYOR, J., dissenting

                                C
    The majority resists this conclusion by worrying about its
“unsettling collateral consequences.” Ante, at 16. The ma-
jority 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 slip-
pery 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 pro-
cess to some by requiring the Government to provide a “fa-
cially 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 proceed-
ing. 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 hus-
band already received.
    Second, the majority’s reliance on O’Bannon v. Town
Court Nursing Center, 

 (1980), is misplaced
and highlights the speculative nature of its concerns.
O’Bannon rejected a freestanding constitutional interest in
avoiding “serious trauma.” 

. The residents of a
government-funded nursing home sought relief from trans-
fer to alternative housing because of the emotional harm
they would suffer from the move. 

 at 777–781, 784.
Muñoz, however, does not rely on a free-floating emotional
harm that separation from her husband will cause. She in-
vokes her fundamental right to marry, live, and raise a fam-
ily with her husband, the right recognized by this Court for
centuries. See supra, at 11–14. Denying her husband entry
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                    SOTOMAYOR, J., dissenting

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 power-
ful. The majority relies heavily on United States ex rel.
Knauff v. Shaughnessy, 

 (1950). See ante, at
6–7, 13–14. A closer look at the story of Ellen Knauff, how-
ever, illustrates the importance of putting the Government
to a minimal evidence requirement when a visa denial bur-
dens 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 undis-
closed 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,

, 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 

. After extensive advocacy, the
Attorney General ordered immigration officials to reopen
the case. See 

 at 961–962. Eventually, Knauff won her
case before the BIA when the Government failed to prove
up its national security concerns. 

 at 963–964. She was
finally admitted as a lawful permanent resident. 

.
   The majority relies heavily on “[t]he rule of Knauff ”: that
“the Attorney General has the unchallengeable power to ex-
clude” a noncitizen. Ibid.; ante, at 14 (emphasizing that
22            DEPARTMENT OF STATE v. MUÑOZ

                    SOTOMAYOR, J., dissenting

“ ‘[n]o limits can be put by the courts upon’ ” the exercise of
the Government’s power to “ ‘forbid aliens or classes of al-
iens 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.” Weissel-
berg, 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 mar-
riage. 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, 

. The majority, not content to resolve this case
on even those narrow grounds, instead relieves the Govern-
ment of any need to justify itself at all. Knauff ’s story il-
lustrates why the right to marriage deserves more. By leav-
ing 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 re-
ported that “ ‘[t]here is certainly no country in the world
where the tie of marriage is so much respected as in Amer-
ica.’ ” Obergefell, 

 (quoting 1 A. de Tocque-
ville, 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 fortu-
nate. The burden will fall most heavily on same-sex couples
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                    SOTOMAYOR, J., dissenting

and others who lack the ability, for legal or financial rea-
sons, 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 some-
one to care for the other” rings hollow. Obergefell, 

. I respectfully dissent.