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As the title of this video suggests, we are discussing the Doctrine of Consular Non-reviewability or Consular Absolutism and what is called Plenary Power in the context of US Visas and Immigration. Now we have made a number of videos on this channel mostly dealing with what are called US Tourist Visas, B1, B2 Visas and other Non-Immigrant Visas talking about the Doctrine of Consular Non-reviewability and when I deal with Immigration, that is mostly where I see it. In fact I hardly ever, in fact I never see much of this, well to some extent I see in operate in the Immigrant Visa categories but not to the level you see with Non-Immigrant Visas.

That being said, it seems like the Doctrine of Consular Non-reviewability has started kind of go off track quite a bit and there's some of my colleagues out here that think it's kind of a runaway train depending on the jurisdiction you are talking about. One thing I have always really liked about the US Embassy here in Bangkok is they seem to have kind of taken the position that look, the Doctrine of Consular Non-reviewability, we have got a lot of unfettered discretion on the non-immigrant side because that's a different side of the Immigration and Nationality Act whereas on the Immigrant side, especially in a family context: Spousal Visas, Fiancé Visas, even parent-child visas, those kinds of things, family-based visas, the view has always been look, the Doctrine of Consular Non-reviewability doesn't have a lot of applicability there because there are specific laws. There is a legal framework to deal with things like a US Marriage Visa and you need to deal with that legal framework; there's no real discretion, you have got to deal with the law. Now interpreting the law and making your own factual determinations, that may kind of fall under the Doctrine of Consular Non-reviewability but in a number of jurisdictions and I want to be clear on this, and this is not me showing any favoritism to Thailand, this is just how it is based on the comparisons I have seen in dealing with other jurisdictions, and more to the point albeit anecdotally, talking with other colleagues in other jurisdictions, other places use the Doctrine of Consular Non-reviewability quite honestly in my opinion improperly because again there is a legal framework in the Immigration and Nationality Act that deals with family-based visas. 

Sort of as a result of this, there have been a number of cases that have been going up through the US Court System which have been discussing the Doctrine of Consular Non-reviewability and it's looking like possibly in a future case you might see a court decision come down and maybe not necessarily shatter that Doctrine but maybe change it fundamentally. The reason this could happen is it all emanates from what's called the Plenary Power which you have got to remember, plenary power is a different thing from Legal Authority. Plenary powers are much more amorphous and they are much more absolute and the thinking is for example the Executive of the United States being the President has a certain amount of Plenary Power when it comes to that person and anyone he appoints for example the Head of the Department of Homeland Security or the Department of State or any of the Consular Officials who are posted abroad. Long story short what I am trying to get to is that authority can sort of be delegated downward because it is deemed that the Executive has the power to make determinations about who, in terms of foreigners, can enter and exit the United States. Quite honestly I agree with that notion. I'm actually kind of a believer in Plenary Power because I think that is exactly what it is. It is a Plenary Power vested in the Executive to make determinations about what foreign entities can enter the United States and what foreign entities cannot. Now it's not unfettered but they have sort of pocket authority if you will to just deal with this stuff, that's what they are elected for in many ways and that is what their subordinates are delegated to do. But again, we are starting to see cases that are starting to challenge this and I think we are going to see some major changes in this over the coming probably two or three years. I will certainly keep folks updated on this channel as the situation evolves.