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Geoffrey Heeren

excerpted from: Geoffrey Heeren, Persons Who Are Not the People: the Changing Rights of Immigrants in the United States, 44 Columbia Human Rights Law Review367 (Winter, 2013) (328 Footnotes Omitted)

This nation was seemingly founded on the idea that all persons enjoy core rights of “life, liberty, and the pursuit of happiness.” In the years since, Americans have come to little consensus about what these rights mean; scholars cannot even seem to agree on the value of rights. Regardless of how much Americans debate the content of their rights, it is clear that the promise of the Declaration of Independence--that all persons have core freedoms--is one that resonates. Thus, U.S. courts have long agreed that non-citizens are entitled to certain basic rights, like the right to equal protection.

Yet if the Declaration of Independence begins by referencing universal human rights, the Constitution starts by reference to a select club of rights-holding members. In the Preamble, it is “the People” who “secure the blessings of liberty” to themselves and their “posterity.” And it was quite clear at the time that “the People” did not include all persons within the territory of the United States; many of the drafters owned slaves whose liberty they forcefully restricted.

From the beginning, there was a fierce debate about whether non-citizens were part of “the People.” Concerned about the importation of dangerous revolutionary ideas from France, the late-eighteenth-century Congress passed a series of anti-immigrant measures known today as the “Alien Acts.” In debates over these measures, Federalists argued that all rights stemmed from the Constitution, which was a kind of compact between citizens; thus, only citizens could assert rights. In contrast, the Jeffersonian Republicans argued that the Constitution referred to persons, not citizens, and that all persons were therefore entitled to constitutional protections. The Republicans also based their arguments on theories of natural rights, human rights, and “mutuality of obligation”--the notion that because immigrants were subject to U.S. law, they were also entitled to invoke the protection of the Constitution.

In the years since, U.S. courts have teetered between these two arguments, ultimately coming to rest at a wobbly compromise between the two. For example, everybody supposedly has a general right of free expression, but only some people have a right to express their opinions through voting. The former right comes from a view about individual autonomy that pervades our legal system; the latter from our structure of government. It might therefore be said that there are two types of rights in the United States today: rights that belong to every person and rights that belong to “the People” who are members of our political system. Relatedly, there are two potential sources of rights: personhood and polity.

The implications and philosophical roots of these two rights paradigms-- personhood and membership--will be explored in Part V. For now it is enough to note that they have each impacted the rights of non-citizens. There are two important points that are necessary to understand how these two paradigms have played out. First, courts are more likely to respect non-citizens' membership rights in certain contexts than in others. Second, non-citizens' legal status has influenced their rights of membership and even personhood.

The context in which courts are least likely to uphold immigrants' membership rights is in deportation and exclusion cases, because of something called the ““plenary power” doctrine. The story of plenary power begins with Chae Chan Ping v. United States, or the “Chinese Exclusion Case.” In Chae Chan Ping, the Supreme Court refused to address the country's discriminatory bar on the admission of Chinese immigrants, even in the case of an excluded Chinese resident who had previously been granted the right to re-enter. The Court's justification was that it would generally defer to the political branches of government when it comes to the exclusion or deportation of non-citizens, since they have plenary power in the area of foreign relations. Over the years, the Court has frequently relied on this doctrine to support judicial non-intervention in cases involving the removal of non-citizens.

However, in cases outside the context of exclusion and deportation (sometimes called “alienage” cases), the Court has affirmed that immigrants enjoy a host of rights. The boundaries of immigrants' rights are fluid, but at times, non-citizens have enjoyed not only rights of personhood, but considerable membership rights. The allocation of these rights has been complicated by distinctions between different classes of non-citizens--a set of distinctions that has grown increasingly complex and legalistic as immigration law has evolved. Occasionally, these distinctions have even filtered into courts' analyses of rights that historically all persons in the United States have possessed, meaning that non-citizens' basic rights of personhood have sometimes been contested. The remainder of this section will consider some of the individual rights that non-citizens in the United States have possessed.

A. Voting

Today when non-citizens vote they face harsh penalties, but in the early years of the Republic, newly minted states commonly allowed alien inhabitants to vote in local, state, and federal elections. After the War of 1812, the practice of alien voting slowed somewhat, but grew again in the mid-nineteenth century as states increasingly followed Wisconsin's lead in allowing “declarant aliens” to vote.

Until 1952, the law required non-citizens seeking eventual naturalization to file “first papers,” indicating an intention to naturalize. This declaration of intent could be made at any point after arrival, did not deprive the non-citizen of his original nationality, did not legally obligate him to complete the process of becoming a citizen, and did not even require an oath of allegiance to the United States. Nonetheless, it became increasingly common during the nineteenth century for states to allow declarant aliens to vote. The alien suffrage movement accelerated after the Civil War, when many states granted declarant aliens who had fought in the Civil War the right to vote. By World War I, however, a rapid decline had begun, and by 1926 all states had outlawed alien suffrage.

B. Military Service

Non-citizens have long enjoyed (or suffered, depending on how you look at it) the right of military service. During the Civil War, nearly twenty-five percent of the combatants were foreign-born. Pursuant to the Enrollment Act of March 3, 1863, men between the ages of twenty and forty-five “of foreign birth who shall have declared on oath their intention to become citizens” were subject to the draft. After the Civil War, non-citizen combatants were entitled to military pension benefits and appear to have sometimes received them even after having left the United States to return to their countries of origin. However, empirical research suggests that, as a practical matter, non-citizens had less access to pension benefits than citizens and were rewarded less on average than native recruits.

Non-citizens continued to be subject to conscription up until it was abolished in 1973, and to this day most non-citizens in the US (including undocumented aliens) must register for the selective service. Today non-citizens remain an important part of the United States' volunteer military, and there are special provisions of immigration law designed to facilitate citizenship for non-citizens who serve in the military.

C. Public Benefits

Since the origins of welfare programs, non-citizens have received certain public benefits, although their right to do so is equivocal. On one hand, the jurisprudential high-water mark for immigrant equal protection arose in a challenge to state restrictions on immigrant access to welfare benefits. In Graham v. Richardson, the Supreme Court held that lawful immigrants are a ““suspect” class that has been subjected to historical mistreatment. Thus, the Court found that state laws discriminating against lawful immigrants should be subjected to heightened scrutiny, and that Arizona and Pennsylvania's discriminatory state welfare codes failed to meet this test.

However, in Mathews v. Diaz the Court backtracked, holding that the federal government had discretion to withhold medical benefits from refugees that it provided to lawful permanent residents (LPRs) who had lived in the United States for at least five years. With little judicial brake on benefit restriction, the trend since Mathews has been towards limiting immigrant access to benefits. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 restricted even lawful immigrants' access to Medicaid, Social Security, and cash welfare benefits.

Taken together, Graham and Mathews appear to set out a spectrum of membership rights, with the status of the immigrant and identity of the discriminator being the relevant factors. In Graham, the discriminators were states; in Mathews, it was the federal government, with its plenary power over immigration. In Graham, the challengers were LPRs; in Mathews, two refugees and one LPR. The holding of Graham--that alienage is a suspect class--has mostly been limited in the years since to cases involving LPRs subject to state discrimination.

D. Education

The traditionally state realm of education is an area where non-citizens have enjoyed substantial membership rights. Nyquist v. Mauclet involved a relatively straightforward application of Graham: the plaintiffs were lawful permanent residents challenging a New York state rule that limited higher education funding to citizens, persons intending to become citizens, or refugees. The Supreme Court found that that the rule triggered strict scrutiny and struck it down.

A more difficult question arose in Plyer v. Doe, which concerned the rights of undocumented children to education. The Court stopped short of applying strict scrutiny, acknowledging that the children's unauthorized status merited different treatment from the lawful immigrants in Graham. Instead, it applied a kind of intermediate scrutiny, ultimately finding that Texas's effort to cut off education for unauthorized migrant children was unconstitutional. The Court's finding that Texas's law violated equal protection is probably an outlier, unlikely to be repeated outside the unique context of an important right like education and sympathetic child plaintiffs.

E. Work

Early Supreme Court cases upheld immigrants' right to work in the face of state restrictions, relying heavily on the logic and rhetoric of natural rights. In Yick Wo v. Hopkins, the Court struck down a San Francisco ordinance prohibiting unlicensed laundry establishments constructed of wood--an ordinance that was selectively enforced by the city to close down laundries owned by Chinese persons. In finding that San Francisco had violated Yick Wo's constitutional right to equal protection, the Court undertook a relatively lengthy discussion of natural rights, including the right to make a living without being subject to “the mere will of another.” The Court instructed that in the American system, “sovereignty itself remains with the people, by whom and for whom all government exists and acts.” Yet the Court stressed that the questions before it “are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.” For the Court in Yick Wo, “the people” were not just the citizens of the United States; they were all persons, who enjoyed a natural right to work.

The Court returned to this theme of inalienable rights early in the twentieth century. In Truax v. Raich, the Court struck down an Arizona law prohibiting the employment of more than a certain allotment of non-citizens. According to the Court, the “right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure.” At the time, it seemed that work had become well-established as a right of personhood.

In the years since, it has become far less clear that non-citizens have a protected right to work. States may bar immigrants from employment in jobs with a “governmental function,” such as state elective office, the state police, public school teachers, and deputy probation officers. The Court's rationale in these cases relies heavily on the theory of membership rights: such persons “perform functions that go to the heart of representative government.” Moreover, it is unquestionable that the federal government can regulate non-citizen employment, and non-citizens who work in violation of these rules cannot seek the same remedies for workplace violations as citizens. In some cases, states can regulate non-citizens' employment too. States are preempted by federal law from criminalizing working without proper documentation, but they can suspend or revoke the licenses of businesses that fail to comply with federal requirements, as long as the state scheme tracks the federal one closely enough. Today, work is a right reserved for members of the U.S. system--citizens and certain privileged immigrants.

F. Property

The early-twentieth-century Supreme Court accepted in Truax that the right to work is a basic attribute of personhood, but treated real property like a membership right. In Terrace v. Thompson, the Court held that the state of Washington could prohibit non-declarant aliens from owning real property. The Court found it rational to distinguish between declarant and non-declarant aliens, citing declarant aliens' former voting rights and their obligation to serve in the military. Ultimately, the Court was unswayed by the fact that this rule disproportionately affected Asian Americans, who were ineligible to naturalize. It acknowledged the natural rights analysis of Truax, but claimed that the right to own property was less universal than the right to work: “The quality and allegiance of those who own, occupy and use the farm lands within its borders are matters of highest importance and affect the safety and power of the state itself.”

To this day, alien land restrictions persist in twenty-nine states. When courts have struck down such laws, it has typically been because they restrict citizens' ability to transfer land, not because of immigrants' rights. Although the persistence of antiquated alien land laws may have more to do with inertia than their post-Graham constitutionality, a new class of restrictions on non-citizen property rights has lately gained currency. Increasingly, localities and states have adopted restrictions on leasing land to unauthorized immigrants; in a number of cases, courts have found these restrictions to be preempted by federal immigration law. Thus, immigrants have won these cases not as rights holders on their own, but by asserting that they are third party beneficiaries of federal rights. Non-citizen property rights have always been qualified at best, and have prevailed when packaged with citizens' property rights or the rights of the federal government.

G. Speech

The text of the First Amendment bars Congress from passing any law abridging free speech without limitation as to the status of the speaker. The Supreme Court has interpreted this language to protect a variety of expressive activity beyond pure speech, from artistic expression to association and advertising, to name just a few. In the early twentieth century, the Court occasionally seemed to employ a weaker form of First Amendment scrutiny in cases involving non-citizens in deportation and exclusion proceedings. However, by mid-century, the Court stated unequivocally that “[f] reedom of speech and of press is accorded [to] aliens residing in this country.” Thus, in Bridges v. Wixon, the Court found that the First Amendment protected the former communist affiliation of the Australian labor organizer, Harry Bridges. Although in Harisiades v. Shaughnessy the Court later rejected a broad First Amendment challenge to the statute that made Bridges deportable, it nowhere stated in its decision that non-citizens have lesser First Amendment rights than citizens.

Contemporary decisions cast some doubt on Bridges's holding that non-citizens enjoy full First Amendment protection. In Reno v. American-Arab Anti-Discrimination Committee, the Court rejected a selective enforcement claim raised by members of the Popular Front for the Liberation of Palestine, who contended that the government had singled them out because of their affiliation with an unpopular group. The Court found that it lacked jurisdiction to assess their claim, but nonetheless opined that where the Government has a legitimate reason to deport an unauthorized immigrant, “[T] he Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.” The implication of American-Arab Anti-Discrimination Committee is that non-citizens without lawful status might be entitled to less First Amendment protection than lawful residents.

This was essentially the holding of a D.C. District Court panel in Bluman v. Federal Election Commission. In Bluman, the court considered a provision of the McCain-Feingold campaign finance reform law barring non-citizens other than lawful permanent residents from making campaign contributions. The court read Harisiades as support for the proposition “that aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas.” It then relied on the political participation line of cases to find that “[i] t is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government.” Although the court purported to apply strict scrutiny to the provision, it rejected arguments that it was seriously over- and under-inclusive as to its alleged purpose of limiting foreign influence over American politics. Ultimately, the court was convinced that LPRs enjoy a special place in the American polity that justified affording them what it considered a membership right.

The Supreme Court affirmed Bluman last term without comment, thus avoiding the messy task of distinguishing Bluman from Citizens United v. Federal Election Commission, where it had found that corporations have a free speech right that insulates them from governmental regulation of their contributions. Corporate non-persons now have more rights in this arena of First Amendment law than non-citizen persons. The justification for this departure can only be that the courts have found campaign contributions to be a membership right and that corporations are members, but non-citizens other than LPRs are not.

H. Criminal Procedural Rights

In Wong Wing v. United States, the Supreme Court held that a Chinese national could not be summarily sentenced to one year of hard labor as a punishment for being in the United States unlawfully. The Court affirmed that non-citizens are entitled to due process, which prevented imposition of an “infamous punishment” without indictment and trial by jury. Since then, courts have assumed that “regardless of alienage, those who stand charged with crimes within the United States are protected by the Fourth, Fifth, and Sixth Amendments in proceedings overseen by Article III judges and adjudicated by grand juries and jury trials.” Indeed, the Court's most discussed immigrant rights decision in the last few years is in the area of criminal procedure: in Padilla v. Kentucky, the Court held that the failure of a defense attorney to advise his client of the immigration consequences of a guilty plea could constitute ineffective assistance, in violation of the Sixth Amendment right to counsel.

Non-citizens' enjoyment of core criminal procedural protections does not mean that they are on equal footing with citizens in criminal cases. Rather, at the ground level, the intersection of the immigration and criminal enforcement regimes operates in a variety of ways to disadvantage non-citizens. Moreover, one of the most basic criminal procedural rights--the Fourth Amendment protection against unreasonable searches and seizures--is qualified for non-citizens. For many years, the Court assumed that non-citizens were covered to the same extent as citizens. However, in Verdugo-Urquidez v. INS the Court held that the Fourth Amendment did not apply to a search by American authorities of the Mexican residence of a Mexican citizen. Verdugo-Urquidez's Mexican home had been raided by American authorities after he was transported by Mexican police to the United States for prosecution. Confronted with the fact that the Fourth Amendment applies, on its face, to “the People,” the Court engaged in some gymnastics to find Mr. Verdugo-Urquidez outside its protection:

“‘[T] he people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

For the first time, the Court seemed to be saying that the Fourth Amendment, long considered a basic right of personhood, was a membership right, restricted to persons with “sufficient connection” to the United States. This wasn't the first time the Court had held that “the people” is a term of art. In the now infamous Dred Scott case, Justice Taney found that the words “people of the United States” and “citizens” were synonymous terms: “They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives.” Since African Americans were not originally part of this “people,” they “had no rights which the white man is bound to respect.” Verdugo-Urquidez and Dred Scott both use communitarian logic to limit the rights of putative outsiders.

I. Due Process

It has been clear since Wong Wing that non-citizens are entitled to due process. However, Wong Wing involved a criminal punishment for being unlawfully in the United States; in cases since, the Supreme Court has been careful to insist that deportation is not a criminal punishment. Thus, the protections discussed above for non-citizens in criminal proceedings do not necessarily apply in removal proceedings. For example, in INS v. Lopez-Mendoza, the Court held that the exclusionary rule does not apply to deportation proceedings.

Overall, the Court has been ambivalent about non-citizens' due process rights in removal proceedings, relying at times on the plenary power doctrine to abdicate any meaningful review. This is particularly the case for non-citizens who are considered to be seeking admission to the United States. The Immigration and Nationality Act has separate grounds of removal for persons in the United States who are “deportable” and for those outside, seeking admission, who are charged as “inadmissible.”

In the nineteenth century case Nishimura Ekiu v. United States, the Court said that for persons seeking admission, “the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law.” Historically, this distinction has elevated form over substance, since persons who have been in the United States for years can still be considered applicants for admission, as long as they have not been formerly granted admission. During the Cold War, for example, the Court upheld the indefinite detention at Ellis Island of a twenty-five year resident of the United States who could not be deported back to his native Romania, and who had been excluded upon his attempted re-entry to the United States based on secret evidence, without having received a hearing.

In contrast, the Court has long held that persons admitted to the United States, at least, must receive due process before being deported. In Yamataya v. Fisher, the Court held that due process barred arbitrary deportations, and entitled non-citizens in deportation cases to an “opportunity to be heard upon the questions involving his right to be and remain in the United States.” Eventually, the Court held that lawful permanent residents of the United States must receive due process even when they are in exclusion proceedings.

At times, the Court has been willing to engage in a searching review of the level of due process in removal proceedings. It has held that the Government bears the burden to establish alienage and deportability by “clear, unequivocal, and convincing evidence.” Moreover, the Court has made clear that even persons ordered deported are entitled to due process. In Zadvydas v. Davis, the Court held that immigrants cannot be held indefinitely if they cannot be deported. Under Zadvydas, immigrant detainees must receive some process to regularly evaluate the likelihood of their removal, and if they cannot be removed in the reasonably foreseeable future, they must be released.

Zadvydas stands out as one of the Court's two most significant decisions in favor of immigrants' constitutional rights since the Burger Court, the other being Padilla v. Kentucky. The two decisions indicate that the Court is still willing to enforce immigrants' basic rights of personhood in the context of criminal procedure and the quasi-criminal arena of detention.

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The above discussion reveals that the entitlement of immigrants to rights in this country has never been a clear-cut issue. Whether immigrants are entitled to rights has always depended on what right is at issue, and where the immigrant stands in the hierarchy of migrants. From the beginning, courts considered some rights to be rights of personhood belonging to everyone. Other rights were associated with membership, and courts have been more likely to afford these to immigrants who were perceived to be members.


 Assistant Professor, Valparaiso University Law School.