tazzygirl
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~FR
The view that foreign nationals do not deserve the same constitutional protections as U.S. citizens was given some support in April 2003 when a divided Supreme Court in Demore v. Kim3 upheld a 1996 statute imposing mandatory detention on foreign nationals charged with being deportable for having committed certain crimes. The statute at issue mandated detention pending the adjudication of the deportation hearing even where, as in Kim's case, the government agreed that detention was not necessary, because the individual posed neither a flight risk nor a danger and could be released on bond. For the first time ever outside the war setting, the Court in Kim upheld categorical preventive detention without any individualized assessment of the need for detention. And the majority did so by expressly invoking a double standard, claiming that in regUlating immigration, "Congress regularly makes rules that would be unacceptable if applied to citizens."4 Yet fifty years earlier, the Court had stated that the Due Process Clause does not "acknowledge[] any distinction between citizens and resident aliens."5
Are foreign nationals entitled only to reduced rights and freedoms? The difficulty of the question is reflected in the deeply ambivalent approach of the Supreme Court, an ambivalence matched only by the alternately xenophobic and xenophilic
attitude of the American public toward immigrants. On the one hand, the Court has insisted for more than a century that foreign nationals living among us are "persons" within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. Because the Constitution expressly limits to citizens only the rights to vote and to run for federal elective office, equality between non-nationals and citizens would appear to be the constitutional rule.
On the other hand, the Court has permitted foreign nationals to be excluded and expelled because of their race. It has allowed them to be deported for political associations that were entirely lawful at the time they were engaged in? It has upheld laws barring foreign nationals from owning land, even where the laws were a transparent cover for anti-Japanese racism. It has
permitted the indefinite detention of "arriving aliens" stopped at the border on the basis of secret evidence that they could not confront.9 And it has allowed states to bar otherwise qualified foreign nationals from employment as public school teachers and police officers, based solely on their status as foreigners.lO
Given this record, it is not surprising that many members of the general public presume that noncitizens do not deserve the same rights as citizens. II But the presumption is wrong in many more respects than it is right. While some distinctions between foreign nationals and citizens are normatively justified and consistent with constitutional and international law, most are not. The significance of the citizen/noncitizen distinction is more often presumed than carefully examined. Upon examination, there is far less to the distinction than commonly thought. In particular, foreign nationals are generally entitled to the equal protection of the laws, to political freedoms of speech and association, and to due process requirements of fair procedure where their lives, liberty, or property are at stake.
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A very interesting read that continues. It might be helpful to some to actually read this.
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