Rights on the Border
“We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” – Trump Tweet – 6/25/18
Tuesday (6/26/18) the United States Supreme Court ruled in the case of Trump v Hawaii. This was the question that started out as the “Muslim Ban,” the campaign pledge made by candidate Trump to ban all Muslims from travel to the United States, “…until we find out what the hell is going on.” This pledge was translated into an executive order in the first days of his Presidency, banning travel from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen; all Islamic countries.
The ban immediately started a firestorm, focusing on the religious singularity of the order. The question: was the President of the United States able to ban “a religion” from entering the country? It didn’t help that the ban went into effect so immediately that folks got onto flights to the US with visas, and arrived to find they were “rejected.”
Federal courts in various states stepped in to put a hold on the action. The administration issued a revised ban, modified but still including only Islamic countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. This ban was blocked by the Courts as well. Subsequent to those court orders, a third revision was issued, significantly adding North Korea and Venezuela to the list.
It was this third iteration that the Supreme Court evaluated. The additions of North Korea and Venezuela clearly altered the “Muslim Only” issue. The Court, in a Conservative/Liberal (Republican/Democrat appointee as well) split of five to four, ruled that the National Security duties and powers of the Executive branch give the President great latitude to make policy decisions. And while the Court noted the statements made by candidate Trump prior to the election, they chose to focus on the “black letter” wording of the executive order itself. The religious singularity issue no longer applied, with Catholic Venezuela and mainly Buddhist North Korea added to the list.
The Supreme Court decision gives great deference to the President’s powers on issues of national security. This was the same deference granted to President Franklin D. Roosevelt, when he instituted a plan to place American citizens of Japanese descent, known as Nisei, into internment camps for the duration of World War II. The Supreme Court, in the 1944 decision in Korematsu v United States, ruled that the “national security” emergency of World War II overcame the Constitutional rights of those American citizens of due process and from government seizures.
It was a dark period in American history, comparable to the Trail of Tears removal of Native Americans and slavery. And while Korematsu himself was exonerated in 1983 by a Federal District Court, the actual Supreme Court decision was never overturned.
However, Chief Justice Roberts referenced Korematsuin the Trumpdecision, stating that a executive decision based, “…solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.” Roberts made it clear that Korematsuwas no longer a part of American legal precedent, joining (Dred) Scott v Sanford and Plessy v Ferguson as historic relics.
So it is now established law that race cannot be used to deny rights to citizens in the United States, even when national security is the “excuse.” It is also established that the President can bar travel into the United States based on national security concerns.
So what rights do non-citizens have once they are on US soil (or under the jurisdiction of the US)? The Fourteenth Amendment to the Constitution applies here, stating:
“…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Do non-citizens fall under the US Constitution, entitled to 14th Amendment protections, or are they some other class of persons who have lesser rights?
In the 2008 case of Boumediene v Bush, a Guantanamo prisoner filed a writ of habeas corpus with the Court. This motion requires that the government authority holding the prisoner show cause (proof) of the reasons. The US government argued against answering the “writ,” citing national security and location. National security based on the government stating that the “proof” would require them to reveal sensitive intelligence data and sources. In addition, the government claimed that the prisoner was not located in the US, but in Guantanamo, and therefore not eligible for Constitutional rights. And finally, as a non-citizen, the right to habeas corpus would not apply.
The Court ruled in favor of the prisoner, stating that the he was within US jurisdiction even if not US territory proper, and therefore gained Constitutional rights. This even though Boumediene himself was a non-citizen designated an “enemy combatant” in the War on Terror.
In light of these decisions we can draw the following conclusions. First, non-citizens under US jurisdiction have Constitutional rights (Boumediene.) Second, while the President’s authority in the interest of national security are powerful, they do not extend to actions based on race (Korematsu). And that the President does have significant powers when it comes to immigration (Trump.)
So it clearly is within the President’s power to stop illegal border crossings. While it hasn’t reached the Supreme Court level, lower courts are already weighing-in on the actions of the government to separate families, finding against it. Could the President deny Constitutional rights to due process (legal hearings) to an illegal border crosser who claims the legal right to asylum in the United States, as his tweet demands? Taking the decisions together, I believe not, even in the reign of the conservative Court created by Senator McConnell.
So if there ever was a question if voting makes a difference: had Merrick Garland, President Obama’s nominee to the Court, been confirmed rather than Neil Gorsuch, this case would have been decided differently. The outcome is the reward for Senator McConnell’s refusal to allow a vote on Garland. If the Democrats gain control of the Senate in November, they should definitely remember his actions.
