Following the September 11, 2001 acts of terrorism, the federal administration has targeted foreign citizens for the most intrusive security precautions. Foreigners are the only ones who can confront military commissions if they are suspected of jihadist crimes. Thousands of foreign citizens have been detained as part of terrorism-related projects, the majority of which have been conducted under the umbrella of immigration law. On the grounds of their national identity, foreigners have been exposed to partial questioning, registration, detainment, and incarceration. The most severe stipulations of the USA PATRIOT Act, ratified six weeks after September 11, 2001, targeted foreign nationals. In short, in attempting to strike a balance between freedom and security, the country is making the easy choice of compromising the freedoms of historically marginalized – foreigners, particularly Arab and Muslim foreigners – for the putative safety of the majority. Although the First Amendment to the United States Constitution fails to distinguish between citizens and noncitizens, Supreme Court cases construing the provisions do.
In April 2003, a divvied Supreme Court in Demore v. Kim affirmed a 1996 decree seeking to impose compulsory imprisonment on foreigners accused of being deportable for actually committing certain crimes, providing some support to the opinion that foreigners do not merit the same legal protections as Americans. The state law at issue required detainment pending the outcome of the immigration enforcement hearing, even while the government agreed that detainment was inappropriate. Regarding Kim’s case, the individual posed no flight danger and could be released on parole. The Judge granted categorical pretrial detention without any evaluating of the need for confinement for the first time outside of a military setting. And most individuals did so by expressly initiating double standards, asserting that Legislature regularly initiates rules that may be inappropriate if effected to citizens when it comes to this issue. Despite this, the Court concluded fifty years earlier that the due process clause fails to recognize differences between citizens and non-citizens. To ensure non-citizens’ human rights, the Court must consider establishing a variety of parameters for evaluating disputes involving non-citizens’ political rights.
First Amendment rights of Non-citizens
The Supreme Court’s profoundly conflicted approach to the issue highlights the difficulty of the issue, a sentiment matched only by the United States public’s conversely xenophobic mindset toward immigrant workers. On the other hand, the High court has asserted for more than a hundred years that foreigners living in the United States are “individuals” within the framework of the statute. Therefore, they shielded by the privileges that the statute does not explicitly uphold to the American citizens. Since the statute specifically inhibits citizens’ ability to vote and seek federal elective positions, fairness between non-citizens and residents appears to be the constitutional regulation. Conversely, the Supreme Court has allowed foreigners to be precluded and ejected based on race. It has enabled them to be expelled for political causes that were completely legal. It has affirmed laws forbidding foreigners from land ownership, even when the laws were anti-Japanese. It has legalized the imprisonment without trial of “incoming aliens” prohibited at the border on the grounds of top-secret information that they seem unable to challenge (Melissaris, 2017). Furthermore, it has permitted states to exclude competent foreigners from full-time work as tutors and law enforcers strictly on the grounds of their immigrant status.
The nation’s history of limiting constitutional freedoms based on citizenship should grant the nation pause before defecting from standardization. Chief Justice Taney’s judgment in Dred Scott v. Sandford aimed at limiting the freedom of liberated Blacks, inferring that “individuals deemed as African descendants who were smuggled into this nation and traded into slavery” were not Americans and thus could not conjure federal judicial power (Morretta, 2018). Chief Justice Taney argued that when the Amendment was ratified, blacks were regarded as a mediocre group of humankind that had been oppressed by the majority race (Nicholas, 2019). Regardless of whether liberated or not, yet remained subject to their power, and had no civil liberties apart from those in positions of authority, and the Administration could opt to confer them.
Another cause for extending to foreigners the civil rights mirrored in the Bill of Rights is that unauthorized immigrants residing amongst the United States citizens, even lawful permanent residents, have no right to vote. Foreigners who live in the United States must abide by the regulations and pay the levies; they are indeed eligible for the draft. Nevertheless, since they lack the freedom to vote, they lack a purposeful opinion in the political agreements that decree their daily lives. Congress legislators have no cause of worry about the privileges and welfare of individuals that are unable to cast ballots (Eisenberg, 2015). According to Bosniak (2017), non-nationals preferences will often be overlooked in the political system; as a result, they are a “reasonably simple case” of a “distinct and insular minority” worthy of special security. Foreigners have some indirect representation, as co-ethnic classes and business entities might exercise their privileges at times, and overseas entities could use international pressure to safeguard their citizens in the United States. However, this kind of indirect representation is not a precursor for elections. When people consider the heinous background of anti-immigrant sentimentality among the general electorate, often tinged with racist attitudes, foreign nationals are a group that needs special constitutional immunity. The High Court has asserted that aliens as a group are a perfect instance of a ‘distinct and insular’ minority whom the intensified legal benevolence is acceptable.
It is established that various constitutional safeguards accessible to individuals within the United States are inaccessible to aliens outside of the indicated geographical boundaries. Nevertheless, once a foreigner gains entry, the lawful situation alters since the due process clause extends to every “individual” in the United States (Bhai, 2019). However, as with plenary powers, the concept that foreigners outside the country’s borders have no legitimate protection has frequently been exaggerated. The most commonly quoted case for the assertion, United States ex. ref Knauff v. Shaughnessy entailed a challenge to the processes used to determine an initial entrant’s admittance request (Kagan, 2015). The High court figured that noncitizens in search of initial entry may not gain access and thus cannot object to the processes used to ascertain whether they may access on procedural fairness.
This result, however, does not compel the far wider inference that foreigners living outside the country’s borders have no constitutional protections at all. Rather, this could reflect the suggestion, perfectly pertinent to Americans. Where state law does not establish an inalienable right, the denial of the unwarranted benefit it provides implicates no “liberty” or “property” interest, and thus procedural law does not apply. Because the Court regarded Knauff as having no right of entry but only seeking a gain, she had neither freedom nor a property interest adequate to initiate due process security, just as an indicted convict has neither freedom nor a property interest in a governor’s concessional pardon and may not challenge the processes by which pardons have been conferred (Kagan, 2015). Because the administration is not refusing to acknowledge foreign nationals outside the borders as an unsubtle advantage but is forthrightly subjecting them to the responsibilities of the lawful system, they ought to be shielded by the legal limitations on such state intervention. Based on this perspective, while denying access to a foreigner may not prompt due process since he has no authoritative right of entry, imprisoning an entrant non-national might, because incarceration explicitly relieves the individual of physical freedom. Although Knauff and Shaughnessy v. United States ex rei. Mezei, propose that detainment of incoming foreigners does not alter the constitutional calculus, they are inaccurate in that regard, since detainment may not be likened with the simple denial of a gain.
Contrary to popular opinion, the Constitution extends foundational due process rights, personal liberty, and equality under the law to all individuals subject to the laws, regardless of immigration status. These privileges are inherent in human dignity and are particularly important for individuals who, like non-citizens, have no opinion in the political system. Conversely, the civil rights to civic engagement, access, and abode might be restricted to the community; they are intrinsically tied to a state’s right to describe itself, and they are almost generally acknowledged as validly restricted to the general populace. In contrast, there are no strong explanations particular to the right of free expression, affiliation, or due process that merits fewer safeguards for aliens. While relevant variances among non-citizens and residents rationalize some discrepancies in treatment, noncitizens are affirmatively granted equal constitutional protection.
Ways Supreme Court May Solve Issues
The general decree is that where foreigners and inhabitants are in similar circumstances, they should be represented fairly. Historically, the Supreme Court has regarded foreign citizens outside the nation in a different manner than those within the nation’s authority. To solve the issue, the Supreme Court may solve the issues in various ways. Foremost, the Court considers alienage to be a “suspicious” organization, and state regulations discerning based on alienage, ethnic group, or nation of origin are generally presumed to be as unconstitutional as laws discriminating along race lines. Provided that noncitizens’ absence of democratic expression, alienage history and ethnic group discriminatory practices as a shield for racist attitudes and political suppression, there are strong reasons for this. Nevertheless, there are two substantial exemptions. First, since the national migration command, by description, treats foreigners inversely than citizens, national discernment in regulating immigration on the grounds of alienage is largely acceptable.
The Supreme Court has stated that in exercising comprehensive authority over naturalization and migration, Congress frequently initiates the guidelines that would be inappropriate if implemented to citizens. In this frame of reference, it only referred to Congress’ authority to dismiss and expedite foreigners, a control that, by description, differentiates between citizens and foreigners. Second, the court of law should allow states to prohibit foreigners from holding public positions related to the management of policymaking, such as law enforcers, tutors, and lieutenant parole officers. It contends states could restrict those individuals that draft and implement government policy to citizens within a system of governance. The Court has not acknowledged that equal safeguard is inapt by adopting these two exceptions, but rather that non-citizens are contrarily positioned than citizens in these areas. This is because noncitizens are exclusively subject to that power and concerning self-government, since they are not officially part of the system of governance.
When the constitution strikes a balance between liberty and security, it is important to have a high regard for the equal dignity and fundamental civic rights of all individuals. Citizens have disobeyed that mandate in the aftermath of September 11. When a country spies on foreign citizens, it preferentially targets foreigners for registration, detainment, and expulsion based on religious and ethnic identities, and locks up foreigners in complete secrecy. The nation has selected the easy route out, compromising their rights for the sake of the nation’s ostensible safety. Ultimately, the real litmus test of integrity in a free democracy may not be how it treats individuals in positions of authority and influence, but how individuals with no view on the democratic system are treated. In this moment of crisis, how the country treats foreign nationals, eventually tests individuals’ divinity.
Bhai, A. S. A. (2019). A Border Deferred: Structural Safeguards Against Judicial Deference in Immigration National Security Cases. Duke LJ, 69, 1149.
Bosniak, L. (2017). Status non-citizens. The Oxford Handbook of Citizenship, 314-336.
Dixon, R., & McManus, B. (2017). Detaining non-citizens: political competition and weak v. strong judicial review. Va. J. Int’l L., 57, 591.
Eisenberg, A. (2015). Voting rights for non-citizens: Treasure or fool’s gold?. Journal of International Migration and Integration, 16(1), 133-151.
Kagan, M. (2015). Plenary Power is Dead: Long Live Plenary Power. Mich. L. Rev. First Impressions, 114, 21.
Melissaris, E. (2017). Non-citizens as subjects of the criminal law.
Morretta, A. (2018). Slavery and Citizenship: Dred Scott v. Sandford. Cavendish Square Publishing, LLC.
Nicholas, M. (2019). Supreme Decision: Roger Taney and the Dred Scott Case. The Histories, 5(1), 2.