Wednesday, March 11, 2015
#70 / Who Is That "We" You're Talking About?
Pictured is Fauzia Din. She is a naturalized citizen of the United States, and is married to Kanishka Berashk, who is not a citizen. Mr. Berashk is in Afghanistan, and his application for a visa, to come to the United States, has been denied. Why? Because the State Department says that Mr. Berashk has been involved in terrorist activities.
If he has, that's a good reason to exclude him. But what if he hasn't? Ms. Din believes that some mistake must have been made, because she asserts that her husband is not (and never has been) a terrorist. Ms. Din has requested that the factual basis for the finding be provided to her and to her husband, so that if there is some mistake, it can be rectified.
Usually, consular decisions about visa applications are unreviewable in the courts. However, a federal appeals court in California held that when the government's decision impacts a "fundamental right," like the "right to marriage," the government must provide some "facially legitimate reason" for the visa denial.
This seems like a fair ruling to me, but the United States government definitely does not agree. The government has asked the Supreme Court to review the decision, and is arguing that the government has an absolute right to turn down Mr. Berashk's application. The government also contends that it doesn't have to tell anyone why, either.
The Supreme Court heard arguments in the case on February 23rd. You can read about the case in an article published in The New York Times on February 24th.
I think the legal issue presented is of very significant importance. If the government doesn't have to provide a "facially legitimate reason" for its actions, then it can act on a completely arbitrary basis, and no one will ever know. Not a good way to run a government, in my view.
However, I am writing this little note to illuminate another issue. According to The Times, Justice Anthony M. Kennedy said he was "uncomfortable with requiring the government to provide even minimal information," because "it might give some indication as to our intelligence-gathering capability and the information that we have." I have added emphasis to the "our" and "we."
The point I want to make is directly related to Justice Kennedy's choice of words, and specifically to his use of "we" and "our" instead of saying "the government's" and "the government." This choice of words indicates that the Chief Justice of the United States Supreme Court has so completely identified himself (and all citizens) with the decisions of the United States government that he thinks that when the government does something "we" do something. When the government asserts a position, that is "our" position, too.
Humbly, I suggest that the Chief Justice of the United States Supreme Court is way off base. "We the People" are emphatically NOT "the government."
The government is supposed to answer to us.
Not the opposite.