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Rights on the Border<\/p>\n
\u201cWe 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.\u201d \u2013 Trump Tweet \u2013 6\/25\/18<\/em><\/p>\n Tuesday (6\/26\/18) the United States Supreme Court ruled in the case of Trump v Hawaii<\/em>.\u00a0 This was the question that started out as the \u201cMuslim Ban,\u201d the campaign pledge made by candidate Trump to ban all Muslims from travel to the United States, \u201c\u2026until we find out what the hell is going on<\/em>.\u201d\u00a0 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.<\/p>\n The ban immediately started a firestorm, focusing on the religious singularity of the order.\u00a0 The question: was the President of the United States able to ban \u201ca religion\u201d from entering the country?\u00a0 It didn\u2019t 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 \u201crejected.\u201d<\/p>\n Federal courts in various states stepped in to put a hold on the action.\u00a0The administration issued a revised ban, modified but still including only Islamic countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.\u00a0\u00a0 This ban was blocked by the Courts as well.\u00a0 Subsequent to those court orders, a third revision was issued, significantly adding North Korea and Venezuela to the list.<\/p>\n It was this third iteration that the Supreme Court evaluated.\u00a0 The additions of North Korea and Venezuela clearly altered the \u201cMuslim Only\u201d issue.\u00a0 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.\u00a0 And while the Court noted the statements made by candidate Trump prior to the election, they chose to focus on the \u201cblack letter\u201d 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.<\/p>\n The Supreme Court decision gives great deference to the President\u2019s powers on issues of national security.\u00a0 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.\u00a0 The Supreme Court, in the 1944 decision in Korematsu v United States<\/em>, ruled that the \u201cnational security\u201d emergency of World War II overcame the Constitutional rights of those American citizens of due process and from government seizures.<\/p>\n It was a dark period in American history, comparable to the Trail of Tears removal of Native Americans and slavery.\u00a0 And while Korematsu himself was exonerated in 1983 by a Federal District Court, the actual Supreme Court decision was never overturned.<\/p>\n However, Chief Justice Roberts referenced Korematsu<\/em>in the Trump<\/em>decision, stating that a executive decision based, \u201c\u2026solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.\u201d\u00a0Roberts made it clear that Korematsu<\/em>was no longer a part of American legal precedent, joining \u00a0(Dred) Scott v Sanford\u00a0<\/em>and Plessy v Ferguson\u00a0<\/em>as historic relics.<\/p>\n 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 \u201cexcuse.\u201d\u00a0 It is also established that the President can bar travel into the United States based on national security concerns.<\/p>\n So what rights do non-citizens have once they are on US soil (or under the jurisdiction of the US)?\u00a0 The Fourteenth Amendment to the Constitution applies here, stating:<\/p>\n \u201c\u2026nor 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.\u201d<\/em><\/p>\n Do non-citizens fall under the US Constitution, entitled to 14th\u00a0<\/sup>Amendment protections, or are they some other class of persons who have lesser rights?<\/p>\n In the 2008 case of\u00a0Boumediene v Bush, <\/em>a Guantanamo prisoner filed a writ of habeas corpus with the Court.\u00a0 This motion requires that the government authority holding the prisoner show cause (proof) of the reasons.\u00a0 The US government argued against answering the \u201cwrit,\u201d citing national security and location.\u00a0 National security \u00a0based on the government stating that the \u201cproof\u201d would require them to reveal sensitive intelligence data and sources.\u00a0 In addition, the government claimed that the prisoner was not located in the US, but in Guantanamo, and therefore not eligible for Constitutional rights.\u00a0 And finally, as a non-citizen, the right to habeas corpus would not apply.<\/p>\n 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.\u00a0 This even though Boumediene himself was a non-citizen designated an \u201cenemy combatant\u201d in the War on Terror.<\/p>\n In light of these decisions we can draw the following conclusions.\u00a0 First, non-citizens under US jurisdiction have Constitutional rights (Boumediene.)\u00a0 <\/em>Second, while the President\u2019s authority in the interest of national security are powerful, they do not extend to actions based on race (Korematsu). <\/em>\u00a0And that the President does have significant powers when it comes to immigration (Trump.)<\/em><\/p>\n So it clearly is within the President\u2019s power to stop illegal border crossings.\u00a0 While it hasn\u2019t reached the Supreme Court level, lower courts are already weighing-in on the actions of the government to separate families, finding against it.\u00a0Could 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?\u00a0Taking the decisions together, I believe not, even in the reign of the conservative Court created by Senator McConnell.<\/p>\n