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September 03, 2006
Non-citizens Under The Constitution
Aaron wrote a good piece are about how Constitutional rights are not given to non-citizens, in response a rather childish and uneducated letter. Aaron's post received a rather childish and uneducated comment from someone who actually thinks that all constitutional rights are given to non-citizens.
Just for the fun of it, let's actually read the 14th Amendment. (Actually reading things before he comments on them is not a certain commentator's strong point.)
The 14th Amendment to the Constitution says that no “person” shall be denied equal protection of the laws. Since the Equal Protection Clause specifically says “person” and not “citizen,” the Supreme Court long ago said that non-citizens have access to the protection of law in our court system. (See Yick Wo v. Hopkins, 118 U.S. 356 (1886)) But by looking at the 14th Amendment’s Privileges or Immunities Clause in the same section we see it specifically says “citizen.” Therefore some discrepency between citizen and non-citizen is established in the text. The Supreme Court has ruled, based on this wording, that discriminatory treatment of non-citizens by statute or executive order will not necessarily fail. Specifically, the Supreme Court has ruled that Congress’ plenary power to control some things (like immigration) and the President’s duty to protect the country both require greater judicial deference, and as such a far less strict judicial review takes place. (See e.g. Mathews v. Diaz, 426 U.S. 67 (1976), upholding a law denying Medicaid benefits to aliens not admitted for permanent residence) However, such deference is not extended to administrative agencies when they act without direct executive order. (See Hamptom v. Wong, 426 U.S. 88 (1976)) President Bush issued an executive order on the detention of non-citizens on November 13, 2001, and it is based on this executive order that terrorists are detained at Guantanamo.
Executive Order 66 FR 57833 is entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” It was issued after the 9/11 attacks which is why Zacarias Moussaoui was not subject to it as he was arrested prior to its issuance. This multi-page order lays out the rules and guidelines for the Defense Department to follow in not processing certain non-citizens through the regular court system.
The Supreme Court has ruled on the "trial by military commission" issue of non-citizens, and found that the Uniform Code of Military Justice must be amended in order to allow it (See the Breyer and Kennedy concurrences in Hamdan v. Rumsfeld), but there is no constitutional problem per se with doing so, merely a pre-existing statutory discrepency. Congress is in the middle of adjusting the UCMJ. In the same opinion, one does not find that the ability of the Executive to detain non-citizens is offensive to the Constitution, not even in Justcie Stevens' opinion.
To recap the above paragraph, the case that most sharply limited the Executive's power in dealing with terrorists said nothing about either a Constitutional right to not be detained OR a Constitutional right to a criminal trial. In fact, the opinion doesn't even disallow military commissions, it just says that until the UCMJ is altered all such commissions prosecuted by the Pentagon must be identical.
To say that the Constitution applies full-bore to non-citizens is an utter fallacy that can only be garnered by refusing to read the text of the 14th Amendment, and closing one's eyes to over a century of jurisprudence. Aaron was clearly correct in his post. Khalid Al-Odah, and those who take his position, have no support from the USSC.
A more detailed legal analysis of this issue can be found in Erwin Chemerinsky's "Constitutional Law" on pages 671-680 (Aspen Publishers 2001).
Posted by Charles at September 3, 2006 04:52 PM
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Comments
Uh, who said full bore? Aaron said constitutional rights don't apply to non citizens. Lets see, freedom of speech, religion, due process, equal protection, privacy (to the extent it exists for citizens), trial by jury (criminal proceedings), freedom from warrantless search or seizure, are ALL CONSTITUTIONAL RIGHTS that apply to non-citizens. What, so non citizen VISITORS can't get medicare? No shit. Do I really need to clarify RESIDENT illegal aliens?
And as much as I would love PandI to have any meaning whatsoever in current SC jurisprudence, it doesn't.
Now, there are areas where I'd agree administrative discretion (and the jurisdiction of federal courts) could mean illegal aliens or war captives or terrorists don't get trials like you or I depending on where, etc., they are.
But don't you dare tell me my mother, and sixty year long resident alien, has any less rights under the constitution that if she were a citizen. Please turn in your law license if you do.
That's the bredth of Aaron's assertion. He was waay past reality there, bubba.
Posted by: paul at September 4, 2006 09:32 AM
As usual paul, you're an idiot. Aaron was talking very specifically about the detention at Guantanamo in his post, which is the sort of Executive order that has ALWAYS been adjudicated to allow for discrepancies of treatment.
Further, you said the following: "Constitutional rights...apply to everyone the govenrment deals with."
That statement is flat-out wrong.
Bad enough that you don't read what others write before commenting, now you don't read what you yourself wrote?
Further quote: "But don't you dare tell me my mother, and sixty year long resident alien, has any less rights under the constitution that if she were a citizen." I didn't, the USSC did. And paul, Pandl is good law, whether or not you like it. (Ou tof curiousity, did you READ it? No, of course not.)
Further quote: "Please turn in your law license if you do." I don't have one. I'm taking the bar in February. But I can assure you that the law doesn't change due to ignorant people who make emotional outbursts about their parents...or children, which was Aaron's initial point.
The USSC disagrees with you paul. Take your meds and get over it.
Posted by: Charles at September 4, 2006 01:47 PM
Mexican illegals want the same rights and treatment. Than why is it if they commit a murder they cry for Mexico to save them if they get the death penalty. Why do illegals, mostly Mexican, rip of our welfare system like it is an entitlement. Illegals of any other race wouldn't do that and if they do not the nearly 100% that the illegals of Mexico. To me illegals are bullies. They don't care that I am only trying to protect my way of life. My children's school from being overcrowded. My home value plummeting cause home of the illegals in my once nice neighborhood look like dumps. I know they are only looking for a better way of life. Instead of having a hand out, they should stand next to the American's and ask us to help them take their country back to the beauty that it once was. Instead of saying I want what I need and sorry, I don't care if your family and way of life suffers. Bullies. Wouldn't care if they were red white and blue, or relatives. I am fighting for my country, ready argue with my government, protect the future of my children, stand in arm's and help the Mexican's win back their country.
Posted by: ThirdEye at July 4, 2008 02:41 PM