Constitutional Rights aren’t just for Citizens

The argument being made by the Executive Branch in why they have blocked immigration and even valid entry visas (Green Cards) from seven Muslim-majority nations has been in the case of “National Security”:

First, to clarify the President’s statement yesterday, the stay on his immigration ban does not throw open the borders but instead takes it back to what was in practice 10 days ago. There is still no easy entry for immigrants and refugees, as the vetting process has been strengthened over the past several years.  It may not be to the level the President wishes, but he can easily change that working with the GOP majority in Congress and whip through new legislation.

But secondly,. the President has provided no evidence that an imminent terrorist threat through entry from these places is warranted.  What resulted in the immediate stay on the ban, before 24 hours had passed, were rulings that stated the government was harming the Due Process rights of those seeking entry to the United States.

Another key piece that could lead to the overturning of the actual Executive Order banning entry hinges on whether or not this is a “Muslim Ban.”  The White House denies it and the actual Executive Order does not specify religion.  But the ACLU has argued in Boston courts, where one of the limited initial stays on the ban occurred, that when as a candidate the President promised to ban Muslims, spoke publicly of preferring entry of one religious group over another and then in widely published reports asked Rudy Giuliani how to make a Muslim Ban legal, regardless of the printed word this is indeed a Muslim ban.

James Madison, the “father of the Constitution” wrote about non-citizens in our land: “that as they [aliens], owe, on the one hand, a temporary obedience, they are entitled, in return, to their [constitutional] protection and advantage.”  But he also clearly delineated what that meant:

If aliens had no rights under the constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one half may be also aliens.It is said, further, that by the law and practice of nations, aliens may be removed at discretion, for offences against the law of nations; that Congress are authorised to define and punish such offences; and that to be dangerous to the peace of society is, in aliens, one of those offences. – James Madison, January 7, 1800
Before illegal aliens are deported, they are given ample Due Process (5th Amendment).  They are also provided legal counsel, since they are unable to afford such (6th Amendment).

But back to the President’s call for his immigration ban being about national security.

Now… before you say “what rights? These aren’t American citizens” keep in mind that Constitutional Rights extend to all who are on our soil, not just citizens (and it has always been this way). Non-citizens have the freedom of religion, speech, assembly, freedom from unwarranted search & seizure, fair trials, right to attorneys, no cruel punishment, etc.

The legal blog Dorf on Law makes a case that a president cannot simply state “national security” in enforcing the law without providing evidence for why it may be encroaching on the rights of individuals. The case is made that there is no clear and evident national security risk even attempted by the government.

From the President’s tweets, it appears that he feels there is a threat to our security to move this swiftly. Providing this evidence to the courts could justify his claims, but also risk making these threats known to the public. Since our 6th Amendment rights include public trials, information provided to the judge would be known to us.

While national security could be provoked to limit and redact what you and I see from those documents, we would clearly know of a threat to our safety.  You would think a President with low public approval ratings would love nothing more than to sway many skeptic Americans by providing a clear and present danger to the public without revealing confidential material.

globe quote.jpg

But the President runs a risk here too, as disclosure in court might reveal that his intention all along was to block a single religious group. As shown in the pulled section of the January 29th Boston Globe, should key staff, including those who Congressional aides who signed non-disclosure agreements, be forced to testify in court, the results might be damaging not only to the President but to those in Congress as well.

However the process plays out, what is clear is that the rights of those on American soil are subject to checks and balances to ensure that the Constitution is followed.

– J.

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