Thoughts on Moving Consular Affairs to Homeland Security

By Dan Cadman on July 11, 2017

A few days ago, a Reuters article published in various media outlets noted that the consulting firm Insigniam had conducted a review and issued a report for Secretary of State Tillerson suggesting that Department of State functions having to do with issuance of visas and passports should be transferred from the Department of State (DOS) to the Department of Homeland Security (DHS). The recommendation was made after surveying thousands of employees online.

Such functions are now performed at embassies and consulates throughout the world by Foreign Service officers (FSOs) within DOS's Bureau of Consular Affairs. The Reuters article quotes one former FSO as saying he feared that, if the functions were transferred, the principle of judicial non-reviewability of visa decisions would be lost.

I don't know if that's true. The reason for the principle isn't because visas are granted or denied by DOS officials. It's because foreigners outside of the United States have no intrinsic right to enter our country and, not being within it, should not be given access to our courts simply to contest a visa denial. It would defeat the purpose of the denial if they could come here to litigate the matter. That existential fact wouldn't change if DHS officers did the work instead; both are employees of the executive branch.

To the extent that the principle of non-reviewability may be eroding, it's because the judiciary has been packed with activist judges at both the trial and appellate court levels who believe in pursuing social agendas rather than well-thought-out tenets of law and sovereignty. We saw such erosion at the highest levels in the way the courts — all of them — treated President Trump's so-called travel ban.

Having said that, I'm not sure that there are huge benefits to such a transfer, other than perhaps helping Secretary Tillerson meet his goal of massive budget reduction at the State Department. The former FSO quoted in the Reuters article says the idea was previously floated after the 9/11 attacks, which lead to the creation of DHS by the Homeland Security Act of 2002.

He's right; the idea was floated and dismissed, although that act did give the DHS secretary significant control over visas: 6 U.S.C. 236(b) says in part that:

[T]he Secretary— (1) shall be vested exclusively with all authorities to issue regulations with respect to, administer, and enforce the provisions of [the Immigration and Nationality] Act, and of all other immigration and nationality laws, relating to the functions of consular officers of the United States in connection with the granting or refusal of visas, and shall have the authority to refuse visas in accordance with law and to develop programs of homeland security training for consular officers.

And yet, in the 15 years since the passage and signing into law of the Homeland Security Act, for all intents and purposes, this section of law has lain fallow and the several DHS secretaries have pretty much left management of consular affairs to DOS without promulgating rules, policies, or procedures governing visas or the like. There has been a clear disinclination to exercise the authorities granted, almost certainly because in the political landscape of our nation's capital, the Secretary of State is first among equals where cabinet officers are concerned and DHS secretaries have felt no need to make powerful enemies.

But even putting aside the potential for sharp elbow-shoving politics among the big dogs of the cabinet, there may be additional reasons not to move too quickly with such a transfer. I once thought that the merger of customs and immigration agencies would also be a good idea because of the efficiencies. After a decade-and-a-half of being part of, and then observing closely from outside, the results of that merger, I'm convinced it may have been a serious mistake.

The missions and objectives were less similar than anyone thought, and the mere fact that officers of both agencies worked in a border environment hasn't proven to be a cogent gel to hold together the new agencies that evolved from the merger. There has been a constant push-me-pull-you within Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) over which of the two missions — customs and trade, or immigration and people — gets the money, the employees, the emphasis, even the pay grades and promotions.

What's more, the merger left the government officers who administer and adjudicate immigration benefits off in their own little pocket of DHS, at U.S. Citizenship and Immigration Services (USCIS). In the years that have followed, it's been my observation that without direct, daily exposure to the enforcement branches — working in tandem, talking over coffee and lunch, sharing stories, going on temporary duty missions together — immigration examiners have become insular and much less attuned to the things they need to do to keep America safe and their administering of benefits well-balanced. Instead, the agency has become a giant benefits-granting mill that churns out hundreds of thousands of approvals from "service centers" whose actual contact with human beings is increasingly remote.

It's no surprise, then, that USCIS vetting and decision-making has taken such hits in recent years, and justifiably so. Yet, one can imagine without a stretch that it might very well be USCIS that would be the happy recipient of a whole new consular branch.

If that were true, would consular decisions be any better? Certainly not. Would DHS take its new mission seriously enough to re-think how it is going about its business where aliens are concerned? Don't know. Have they shown any proclivity in the last 15 years to involve themselves (despite the authority granted them via the section of law I quoted) in the always busy and often messy environment of visa issuance and consular affairs, even though it directly impacts upon their work domestically? Absolutely not.