Procedural Due Process Liberty Interests

Abstract

The Supreme Court’s divided decision in Kerry v. Din, 135 S. Ct. 2128 (2015), shows the difficulty of defining liberty for purposes of procedural due process. Din, a United States citizen, claimed that she had been denied procedural due process when the State Department refused to grant an immigrant visa to her husband. Justice Scalia’s plurality opinion reasoned that Din had no liberty interest protected by procedural due process, while Justice Breyer’s dissent concluded that Din had such an interest based on fundamental rights involving marriage, the right of citizens to reside in the country, and statutory immigration preferences for spouses. The Din decision raises questions as to the content of procedural due process liberty. It also raises questions of the extent to which substantive constitutional rights and statutorily granted interests should be treated as liberty interests for purposes of procedural due process. While prior scholarship has answered a number of such questions with respect to property, no similar systematization has occurred with respect to liberty interests. This article undertakes to provide a taxonomy of liberty for purposes of procedural due process, and it analyses Kerry v. Din in light of those categories.