Big changes are afoot on immigration policy as the right continues to deploy its familiar talking points, feeding into the Trump punitive juggernaut. Unfortunately, the current public discourse — whether around the Muslim ban or the expulsion of “criminal aliens” — remains mostly free of historical, legal and philosophical nuance. We are lurching from one dramatic executive order to another without much sense of how we got here and what realistic remedies we can pursue. If we are going to move forward on immigration, we need to immerse ourselves in the historical and constitutional dilemmas that have led to the current crisis.
Here to add nuance to the immigration debate are three of the nation’s foremost experts on immigration, criminal justice and constitutional law, taking on not only what we already know about Trump’s travel ban and deportation policy but also expected future initiatives from this administration. These scholars address the thorniest issues in immigration, the ones at the root of our present crisis, with all the ballast we need to oppose simplistic talking points: Should immigrants, regardless of status, have constitutional rights? How solid in law and morality is Trump’s reliance on the plenary power doctrine to implement far-reaching changes? Is Trump’s deportation policy an anomaly, or does it have roots in recent bipartisan legislation? And what can the states, as a last resort, do to counter federal anti-immigration initiatives?
John S.W. Park is chair and professor of Asian American Studies at the University of California at Santa Barbara. He is a specialist in race theory, immigration law and policy, and Anglo-American legal and political theory. His books include "Elusive Citizenship: Immigration, Asian Americans, and the Paradox of Civil Rights," "Probationary Americans: Contemporary Immigration Policies and the Shaping of Asian American Communities," with Edward J. W. Park, and "Illegal Migrations and the Huckleberry Finn Problem."
Kevin R. Johnson is Mabie-Apallas professor of Public Interest Law, professor of Chicana/o Studies, and dean at the University of California at Davis School of Law. His books include "How Did You Get to Be Mexican? A White/Brown Man’s Search for Identity" and "Immigration Law and the U.S.-Mexico Border." He is president of the board of directors of Legal Services of Northern California and has served on the board of the Mexican American Legal Defense and Education Fund (MALDEF). He blogs at ImmigrationProf and SCOTUSblog.
David Brotherton is professor of sociology at the John Jay College of Criminal Justice at the City University of New York (CUNY). His recent books include "Keeping Out the Other: A Critical Introduction to Immigration Control," edited with Philip Kretsedemas, and "The Almighty Latin King and Queen Nation: Street Politics and the Transformation of a New York City Gang," with Luis Barrios. His current research projects include a performance-based sociological study of immigration removal hearings in New York City.
The constitutional rights of immigrants
Do constitutional rights depend on citizenship or personhood? In other words, should immigrants, regardless of status, have full constitutional rights? Why, or why not? Should such rights commence as soon as a person sets foot on U.S. soil? If you wish to grant immigrants some but not all constitutional rights, which ones do you exclude, and why?
John S.W. Park: Until the 14th Amendment, the United States Supreme Court and other federal institutions did not behave as though the Constitution should apply to non-citizens. For example, President John Adams supported the Alien and Sedition Acts in 1798, a rule that, among other things, gave the president the authority to deport foreigners whom he considered hostile to the United States, and then lengthened the number of years of residency required for new immigrants to petition for American citizenship, from five years to 14. Adams did not think that new immigrants (especially French radicals fresh from their own bloody revolution) should be able to vote after just five years here, and he felt that all “radicals” should be deported. He was appalled that Thomas Jefferson, his political rival, had praised the French Revolution, and Adams thought the rules in 1798 necessary to protect the republic from foreigners.
Not two decades later, President Andrew Jackson insisted that Native Americans were not American citizens, and thus also not eligible for constitutional protections. He and his supporters noted that the phrase “Indians not taxed” appeared in the original constitution, in that portion where they were expressly excluded from congressional representation. Moreover, Congress had passed the Naturalization Act of 1790 less than two years after the Constitution’s ratification, and under the Act of 1790 only “free white persons” could pass into American citizenship. “Indians not taxed” and persons of African ancestry, including slaves, were not “white” or “free” and so, in the words of Justice Taney in Dred Scott (1857), persons of African ancestry also had “no rights which the white man [was] bound to respect.” Andrew Jackson had appointed Roger Taney to the United States Supreme Court, and both men interpreted the Constitution to exclude Native Americans and persons of African ancestry from American citizenship.
After the Civil War, the framers of the 13th, 14th and 15th Amendments attempted to resolve these problems in favor of more expansive definitions for constitutional rights. The 13th abolished slavery, and the 15th guaranteed the right to vote, but the 14th Amendment said that anyone born on American territory should be regarded as an American citizen. In addition, the radical Republicans insisted that personhood, not citizenship, should be enough to trigger constitutional protections: “… 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.”
Chinese immigrants in California would force the federal courts to clarify the meaning and scope of these passages. In Yick Wo (1886), for example, the United States Supreme Court struck down San Francisco rules that were meant to harass Chinese residents of that city, under the theory that they were “persons” within the protections of the 14th Amendment. However, just three years later (and over the next 50 years), this same court said the United States could exclude all immigrants, including former Chinese migrants, if Congress chose to do so. Justice Stephen Field said that the 14th circumscribed the “states,” not so much the federal government, and with respect to foreigners, the United States should have broad powers to exclude persons it didn’t want.
In Wong Kim Ark (1898), the court said that Chinese persons born in the United States were American citizens not subject to exclusion, but this proved a rare victory. In most other cases, the court upheld the right of the United States to exclude prospective immigrants, and it gave the president broad discretion to determine how best to do that, under the idea that newcomers were persons, but not yet members of the United States. In cases where the federal government had behaved perhaps too severely toward newcomers, the Court offered immigrants procedural protections designed to curb zealous immigration enforcement. People who claimed citizenship, for example, should have the right to present evidence of their citizenship before being summarily deported.
Over the years, the federal courts have said that persons who’ve resided in the United States, and even persons who’ve had longer-term relationships with the American government, should have similar procedural rights under the Constitution, and in some rough proportion to the length of their stay or their relationship. This is why deporting a longtime resident, even someone without legal immigration status, tends to be more complicated than deporting someone who just arrived. This is also why, when the United States holds someone in Guantanamo Bay for a longer (indefinite?) period of time, the federal courts have demanded some procedural protections for these inmates, even though they’re not citizens and they’re not in the United States, as in Hamdan (2006).
Does the Constitution protect citizens or all persons? The fundamental problem might rest in a basic philosophical disagreement about the Constitution itself. Is the Constitution a kind of contract that primarily benefits and binds American citizens to one another? Or is it a broader statement of principles — perhaps reflecting commitments to fairness and justice and other important values — that are distinctive of a classical Enlightenment moment? We still debate these questions: The late Justice Scalia was a strong proponent of the former view, while many leading scholars and jurists — Justice Ruth Bader Ginsburg, or Bruce Ackerman of Yale or Mark Tushnet of Harvard — have argued the other side.
Imagine a case where our officials go to a foreign country and suppress its press and media organs, maybe assassinate a journalist or two — does this kind of behavior raise a “constitutional” problem? Scalia might say that such things are illegal in those countries, but it’s not an American constitutional violation because it took place abroad, where the Constitution isn’t binding, and to victims who did not have American constitutional rights.
Progressive scholars might say, however, that the Constitution represents collective commitments to certain basic values — protections for a free and vibrant press, and free speech rights in general — and that Americans violate those principles when they suppress those rights wherever they are, even when the victims are not fellow Americans. Because of these fundamentally different perspectives, people in constitutional debates often speak past each other, one side thinking that the status of the victim, the status of the perpetrator and location of the purported violation are all important, while the other side considers these things not as relevant.
Consider how the Constitution might be similar to a set of “house rules.” In my house, for example, we take our shoes off, we don’t believe children should talk back to their parents and we observe excellent table manners. If my kid goes to someone else’s house, however, and then traipses around with her shoes on, shoves her face with food and curses like a sailor, what to do? Should I punish her when she gets home, and is it my responsibility that she not behave like a brat in anyone’s house? Is she a representative of my family, constrained by the expectations of her parents wherever she goes?
And what can I reasonably expect of other children who come over to my house? Can I say, for example, “Take your shoes off (you little white barbarian),” and then kick out the ones who don’t obey? Do I have the right not to invite ill-mannered, dangerous children, say, pyromaniac kids or kids with full-blown influenza?
What if my wife and I adopt a child, and what if the kid lives with us for several years, utterly mindful of our rules — would we be heartless to chuck her out for a minor infraction? What if we didn’t legally adopt the kid, but she’s lived with us nonetheless, and we didn’t remove her either, because our house is gigantic and we’ve noticed that she does the dishes and takes out the trash, year after year. Are we wrong if, one day, we tell her to leave, either because she didn’t observe the no-shoe policy or we’re just tired of her?
Kevin R. Johnson: a) Due process rights of noncitizens physically present in the United States: The protections of the U.S. Constitution extend to all persons, including all immigrants, physically present in the United States. The Fifth and Fourth Amendments prevent both federal and state governments from depriving any person of “life, liberty, or property without due process of law.” “Liberty” includes, but is not limited to, freedom from detention and freedom from removal from the United States.
The U.S. Supreme Court has held that, before they can be removed from the United States, noncitizens — no matter their immigration status (i.e., undocumented immigrants have due process rights) — are entitled to a hearing that complies with due process; see Yamataya v. Fisher (The Japanese Immigrant Case, 1903). Because of the weighty interests of the noncitizen at stake, a removal hearing is constitutionally required. As the court wrote in Fong Haw Tan v. Phelan (1948), “Deportation is a drastic measure and at times the equivalent of banishment or exile.”
Today, an immigration court, an administrative tribunal housed in the U.S. Department of Justice, holds a hearing in which the U.S. government seeks to remove a noncitizen from the United States. Removal hearings allow the government and the noncitizen to present witnesses and to submit documentary evidence. The immigration court’s decision is reviewed by an administrative Board of Immigration Appeals (BIA). The BIA ruling can be appealed to a U.S. court of appeals. The Supreme Court has consistently held that, even when Congress appears to have eliminated judicial review of a removal order, the Constitution requires some kind of judicial review.
The precise due process rights of a noncitizen may vary by type of immigration status and length of time in the United States. In Landon v. Plasencia (1982), the Supreme Court addressed the constitutionality of the denial of entry into the United States of a long-term lawful permanent resident, Maria Plasencia, who had left the country for a weekend in Mexico. The Court acknowledged that “once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation.” The Court added that, in the case before it, “Plasencia was absent from the country only a few days, and the United States has conceded that she has a right to due process” (emphasis added).
The Supreme Court directed that the Mathews v. Eldridge (1976) balancing test be used to determine the specific procedures that due process required in Plasencia’s case: “[T]he courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures.”
The courts have read Landon v. Plasencia as requiring the application of the balancing test to determine whether immigration procedures are consistent with due process.
In sketching how the interests might be balanced in the case before it, the court noted that Maria Plasencia, a lawful permanent resident, had a “weighty” interest at stake and “[stood] to lose the right ‘to stay and live and work in this land of freedom,’ with the possible loss of the right to rejoin her immediate family, a right that ranks high among the interests of the individual.” The Court also acknowledged the government’s “weighty” interest in the efficient administration of the immigration laws. The Court instructed the lower court on remand to determine “whether the procedures [applied to Plasencia] meet the essential standard of fairness under the Due Process Clause” (emphasis added).
b) Noncitizens’ right to counsel: Unlike the defendant in a criminal case, a noncitizen in removal proceedings is not guaranteed counsel by the U.S. Constitution. However, the Immigration and Nationality Act provides that “[i]n any removal proceedings before an immigration judge and in any appeal …, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose” (emphasis added). Counsel is essential because of the complexity of the immigration laws, which in a 1977 circuit court opinion were compared to “King Minos' labyrinth in ancient Crete.” Not surprisingly, noncitizens represented by counsel in removal proceedings are much more likely to prevail than those who are unrepresented.
Strong arguments have been made that due process requires that noncitizens be guaranteed counsel in removal proceedings. Some local jurisdictions with large immigrant populations, including Los Angeles and New York, have taken steps to increase access of immigrant residents to legal representation in removal proceedings. The California legislature is considering measures that would provide funding to increase access to counsel for immigrants.
This discussion has focused on constitutional rights of persons, including noncitizens, physically present in the United States. Prospective immigrants outside the United States have more limited constitutional protections, as will be discussed below.
David Brotherton: My position on this is that anyone who steps on U.S. soil should be protected by the Constitution. Of course, this does not include the right to vote or the right to run for elected office; these rights should remain those of citizens only. However, all other rights, such as those that relate to the protections of individuals and groups provided under the U.S. legal code, are applicable to anyone residing in the nation, regardless of how long or short their stay. Some of the most important rights that should be enjoyed by all, such as due process, protections against search and seizure and the right to freedom of speech are critical democratic rights and should be understood not just as U.S. rights but as universal rights.
Since the U.S. is fond of declaring itself to be a paragon and exemplar of a functioning democracy it should set an example of ensuring that the rights that it holds so dear and which in its eyes make it such an exceptional nation should be available to all who pass through its borders. Of course, it would be wonderful if those constitutional rights of the U.S. could be extended in furtherance of establishing a more functioning and less contradictory participatory democracy, since it is clear that the extraordinary economic power of certain individuals and social classes has greatly thwarted the promise of the democratic project so many residents of the U.S., be they citizens or noncitizens, believe in and long for.
The plenary power doctrine
Do you think that the plenary power doctrine, as it has been applied to federal immigration law for the last 125 years, is too broad? In what ways would you restrict it, or would you do away with it altogether? What would be your basis in law for supporting abolition of the plenary power doctrine when it comes to immigration, if that is a position you support?
Park: Public officials suggested the idea of “plenary power” prior to immigration law, and the idea originates in the relationship between the United States and Native American tribes. Native American tribes and Native American people were not citizens of the United States, even though they lived within the boundaries of the states. They were “domestic dependent nations,” apart from the United States, and yet under the authority of the United States government as conquered people. For them, Congress and the president had “plenary power,” and the federal courts had limited power to check these branches, even when the federal courts could acknowledge, as they did in Cherokee Nation v. Georgia (1831), that Congress and the president were not living up to their treaty obligations. Because Native Americans were not American citizens, and because the federal courts only protected the rights of American citizens under the Constitution, injured Native Americans had to seek remedies from Congress and the president, not the federal courts, according to Chief Justice John Marshall. This line of thinking lasted well into the first half of the 20th century.
In the immigration context, the federal courts were highly influenced by these precedents — in cases concerning immigrants and noncitizens, they’ve held that the federal courts should not interfere with laws and policies established in Congress and by the president for noncitizens. Again, for people who believe that the Constitution was a kind of contract, designed primarily or exclusively for the benefit of American citizens, there is no moral or legal problem with this position. Congress should have the right to limit immigrants who seem harmful, to encourage those who might help the United States and otherwise set the procedures and policies that govern entry, exclusion and removal.
For those of us who feel that the Constitution represents statements of broad principles, however, the plenary powers doctrine has always been highly problematic. We note that the United States Supreme Court created this doctrine to justify doing nothing as Native Americans were driven off of their ancestral lands. Then the Court used the same doctrine again when Congress moved to exclude Chinese immigrants in the late 19th century, as it also endorsed notions that the Chinese were a threat to white working-class people and that they were “unassimilable.” Thus, the Court allowed Congress and president to be stone-cold racist, in spite of the 14th Amendment and the Civil War and lofty (re-)commitments to the equality of all people irrespective of race. It’s very disturbing to think that these precedents are still “good law”: the principle of Chinese exclusion still survives, in the sense that if Congress and the president agree to exclude Muslims or Koreans or any group by race or nationality, many justices would likely not interfere.
Indeed, does the president now have the right to exclude people from Muslim nations, simply because they’re Muslim? He will say that they are not citizens, that they are not yet in the United States, that precedents support this exercise of his executive power; others will say that such policies undermine commitments to religious liberty, in addition to other fundamental commitments implied within the equal protection and due process clauses. Again, these differences stem from inherent disagreements about the Constitution, the scope of national sovereignty and then our commitment to broader principles reflected in the Constitution.
Several scholars have argued that when individual nations pursue their own interests unchecked by international norms or standards (or even their own norms and standards), all kinds of bad things can happen. Especially when they’ve assessed the behavior of “criminal states,” some scholars and officials have argued the need for international treaties and organizations that can hold government officials accountable when they violate basic human rights or behave in racist or genocidal ways. Samantha Power, the former U.S. ambassador to the UN, has noted that state-sanctioned genocidal actions should never be lawful, and that robust international treaties and conventions are necessary to prevent these actions and to hold officials accountable. Such treaties would, by necessity, curb doctrines like the plenary powers doctrine, in cases where states may abuse or murder their own citizens or noncitizens.
Others say that such moves could tend toward “international tyranny” and “world government.” Members of the Trump administration, including the president himself, have chafed against international organizations, including the UN, EU, NATO, WTO, the European Court of Human Rights and so on. They’ve favored an “America First” that would allow all nation-states to pursue their own ends without international interference. The proponents of this “America First” idea say that in the postwar world, the United States has shouldered a disproportionate burden for the haphazard, imperfect international system that we have now — Trump has suggested scrapping the system, or making American allies pay more for American participation. He and many of his key advisors do not seem to think of themselves, or this nation, as bound to international law or international organizations.
I and many other scholars believe that this approach could lead to disaster. To varying degrees, many of us believe that basic human equality within nation-states is a core value applicable not just in the U.S., but in all states. Conversely, state-sanctioned discriminations based on race, nationality, gender, political opinion, religion and other similar characteristics are simply unjust — no state should harm or persecute anyone based on these grounds. Free speech and a free press, due process of law, political participation and representative government, rule of law, prohibitions against cruel and unusual punishment — these are all really good ideas that should bind all nations, too. I don’t think it’s a good idea to promote the right to bear arms (as an individual right), but I do think that many other provisions of the Constitution embody excellent ideas that already curtail all government actors in the United States.
Thus I and many others would support international and national efforts to bring our own national sovereignty in line with those values — we should not admit or exclude immigrants on the basis of religion, gender, race, nationality and so on. That is, faced with choices between plenary powers on the one hand and basic human rights norms on the other, I believe that Americans should always choose human rights norms, even if that means that we give up or circumscribe our own sovereignty. In this view, I am fine with handing over my own government officials if they’ve been accused of torture or mass incarceration of their own citizens or any other serious violation of international human rights norms. Yet of course, public officials who’ve entertained race-based exclusions and religious bars and torture aren’t thrilled by that possibility.
These insights work forwards and backwards: I think the Nuremberg Trials after World War II were imperfect in many ways, but one of the deepest flaws may have lain in an unwillingness to subject American public officials to some harsh questions — did they commit crimes against humanity? Was it necessary to drop two atomic weapons? Should it ever be lawful to carpet-bomb and incinerate whole cities? Was the incarceration of Japanese persons and Japanese-Americans a state-level criminal act tinged with racism?
Johnson: In The Chinese Exclusion Case (1889), the Supreme Court upheld the Chinese Exclusion Act, which largely banned immigration from China to the United States. In so doing, the Court held that Congress had “plenary power” over immigration and its substantive immigration decisions were not subject to judicial review. The Chinese Exclusion Act was one of many racially discriminatory laws passed by Congress in the late 1800s, almost all of which were upheld by the courts.
Over the last 125 years, “cracks” have emerged in the plenary power doctrine. Namely, the Supreme Court at times has exercised minimal judicial review over immigration decisions. In recent years, the Court has rarely invoked the plenary power doctrine and, indeed, on a number of occasions strived to avoid invoking it. The reason: The antiquated Chinese Exclusion Case is out of synch with the Supreme Court’s modern constitutional jurisprudence. One would think that minimal rationality review of U.S. government action with respect to immigration would be more consistent with modern constitutional sensibilities than the immunity from judicial review bestowed by the plenary power doctrine.
Another factor militates in favor of judicial review of decisions of noncitizens seeking admission into the United States. In the average immigrant admission case, the rights of U.S. citizens and lawful permanent residents in the United States, such as family members and employers, are adversely affected by the denial of the admission of a person into the United States. In Kerry v. Din (2015), six justices of the Supreme Court agreed that, when rights of a person in the United States are affected by a visa denial, as in cases such as Kleindienst v. Mandel (1972), judicial review of the decision is justified.
Brotherton: The plenary power doctrine places the regulation of immigration and deportation firmly in the hands of the legislative and executive branches of the government. To some degree this makes sense since (as is often argued) it is preferable for elected officials rather than appointed judges to hold sway over such important policy matters and practices relating to changes in national sovereignty and the application of human rights. Certainly during the 1960s, when the country was moving in a more liberal direction, we can see how progressive changes to the immigration laws allowed a much more diverse population to enter the United States and end the privileging of Europe as the source of immigrant population flows, which had largely been the case hitherto.
When Congress moves to the right or there is a surge in anti-immigrant feeling among the populace we can get the opposite, as happened in 1996 with the racist and highly punitive Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In this particular case we also see what happens when democratic decision-making is not in evidence and the much heralded checks and balances characteristic of U.S. legislative practice is not apparent. For example, as the renowned immigration lawyer Ira Kurzban wrote of the flawed process that led to the bill’s passing:
Lamar Smith, who was the Chairman of the House Immigration Subcommittee at the time, rewrote the immigration laws by hiring lawyers from FAIR (Federation for Immigration Reform), an anti-immigration group. He knew he could not simply eliminate all waivers so he and his staff rewrote the waivers to make them far less useful to most people. The Republican members of Congress deferred to Smith and the Democrats were only provided the IIRIRA legislation less than 72 hours before there was a vote.
Kurzban went on to remind us that, other than Smith, almost no legislator actually read the 300-plus page tome. Nonetheless, the acceptance of this critical piece of legislation has resulted in changes to the regulation of the country’s borders, both internally and externally, with some of the most devastating effects on immigrant families ever recorded in the nation’s history. I am referring here to the deportation of millions of U.S. residents, many of whom lived and worked here legally, and the collateral damage this has caused.
Consequently, when one sees this type of reactionary political shift in immigration policy due to the plenary power provision and how it has paved the way for the present insular, xenophobic and anti-Muslim conception of border control, the current process cries out for modification and far greater democratic accountability. It should be remembered that President Bill Clinton called this particular legislation one of the worst he ever signed and assured the nation that it would be revised at a later stage. Alas, the only revisions made to the bill pushed the provisions therein further to the restrictionist and punitive right and nothing has been done since to alleviate its dire results.
Next week: What are the worst effects of that 1996 immigration law -- and the worst failures of our current immigration system? What can state and local governments do to counteract punitive federal immigration laws?