pageok
pageok
pageok
Illegal Aliens and Other Constitutional Provisions:

The magistrate judge's opinion in the Second Amendment illegal alien case also reminded me of our own then-Judge Paul Cassell's opinion in a Fourth Amendment case involving an illegal alien who feloniously reentered the U.S. If the magistrate judge's opinion is adopted by the district court, and the decision is then appealed and affirmed using the reasoning that "the people" doesn't generally include illegal aliens, it may well have an important effect on Fourth Amendment illegal alien cases as well as Second Amendment ones.

UPDATE: Reader David Warren points out that then-Judge Cassell later expressly held the opposite as to an illegal alien who had not feloniously reentered the U.S. See U.S. v. Atienzo, 2005 WL 3334758 (D. Utah 2005):

In light of Esparza-Mendoza [the earlier case I linked to above], the question is now presented as to whether that decision should be extended to block illegal aliens who are not previously-deported felons from claiming Fourth Amendment protections. As just explained, this issue was specifically reserved in Esparza-Mendoza. The reasoning of Esparza-Mendoza does not automatically require the conclusion that illegal aliens who are not felons are categorically barred as a class from asserting Fourth Amendment rights. The opinion rests in no small part on the unique status of felons-who are generally excluded from the political process. With respect to illegal aliens who are not felons, the decision whether they fall outside the Fourth Amendment would seem to require a case-by-case determination. Because in this case the government does not challenge Atienzo's argument that he has sufficient connections, the court concludes that he can assert a Fourth Amendment claim.

While deported alien felons are excluded from the national community in a permanent way, the situation may be different for at least some persons who have committed no felonious criminal act other than to remain in this country illegally....

Having rejected the categorical position that all illegal aliens as a class lack sufficient connection to this country to assert Fourth Amendment rights, the court has no legal arguments before it disputing Atienzo's specific position that he has sufficient connections. In light of the posture of the case, the simplest course is for the court to then accept the uncontested specific view that Atienzo can claim Fourth Amendment protection.

The Second Amendment opinion I link to, of course, concludes that illegal aliens generally, not just illegal alien felons, lack Second Amendment rights.

Lior:
I raised this issue on another thread, and now found Harisiades v. Shaugnessy -- which seems to have held that legal aliens don't have 1st amendment rights. It seems that the government's power over aliens is axiomatically not subject judicial control, only to legislative control. In particular, they have an unfettered right to deport aliens for any reason, specifically in that case for exercising the rights of association, assembly, or expression of opinion.
If the "people" of the first amendment are the same "people" of the other amendments, we may soon start to wonder if the eighth amendment applies to aliens?

I'm fairly certain a federal law conditioning admission into the US on "voluntary disavowal" of constitutional rights would be constitutional under this logic. For example, I doubt the court would invalidate a law allowing for suspicionless searches of the homes of legal aliens. Nativism and other anti-foreigner sentiments have always been very strong in the US, and strongly supported by the Supreme Court.
8.14.2008 3:20am
A. Zarkov (mail):
"Nativism and other anti-foreigner sentiments have always been very strong in the US, and strongly supported by the Supreme Court."

Are these sentiments less strong in other countries? If so which ones?

Some countries will not accept foreigners for citizenship period. For example (South) Korea. Mexico has troops on its southern border and deals harshly with anyone who enters the country illegally. I can't think of any country that welcomes so many immigrants as the US.
8.14.2008 3:59am
J. Aldridge:
I can tell you John Bingham believed the only bill of rights applicable to aliens was the 5th Amendment. I suspect the framers had a similar view?
8.14.2008 4:06am
ARCraig (mail):
Zarkov-

I'd like to think we can hold ourselves to a higher standard than "marginally better than any one else". That was certainly the original idea.

Aldridge-

Can there really be much "original intent" on this question? It seems like the obvious answer on that is that the Founders weren't really thinking of legal or illegal aliens one way or another when they drafted the Bill of Rights.
8.14.2008 4:15am
Lior:
I can't think of any country that welcomes so many immigrants as the US.


Canada (1/10th the population) takes about 1/5th of the number of immigrants.

In any case, I was not implying that the US isn't a great place to live even for non-citizens. It is. Rather, I was referring to the dissonance created by coupling the principle of broad guarantees of freedoms to "people" with the practice of all branches of government sending a strong diswelcoming message to legal visitors.
8.14.2008 4:26am
Reasoner:
It seems simple to me. Illegal aliens are committing a crime. Not even citizens have the right to arms while committing a crime.
8.14.2008 9:16am
Melancton Smith:
Reasoner wrote:

It seems simple to me. Illegal aliens are committing a crime. Not even citizens have the right to arms while committing a crime.


Committing a crime? or convicted of committing a crime? I should hope due process would apply as well...

Certainly an illegal alien caught with a gun would be tried for illegal entry and, if convicted, be deported.
8.14.2008 10:02am
Sarcastro (www):
All crimes are equal in their ability to get around Heller! If you have any traffic tickets, watch out!

Also, natural law clearly doesn't apply to non-Americans. The God-given right to self defense obviously only counts if you're born in America, God's Best Country ever!
8.14.2008 10:27am
Doc Rampage (mail) (www):
ARCraig, the quote was "Nativism and other anti-foreigner sentiments have always been very strong in the US" When you say that something is "very strong" in one country, the natural interpretation is that it is very strong in that country as compared to other countries. Taken in this sense, the statement is laughable. The US population has always been one of the most welcoming native populations in the world to immigrants.

And to predict one predictable response, I'll add that opposition to illegal immigration is not nativism. Nativism is the position that the interests of established natives should take precedence over those of legal immigrants. Until you have established that the immigrants have a right to be here in the first place for example, there is no issue of who has a right to the jobs that are here.
8.14.2008 11:10am
DiverDan (mail):
I'd be much more interested in cases: (a) which explain why illegal aliens have Constitutional rights to live where they please, justifying the Courts striking down as unconstitutional City ordinances which prohibit renting apartments to aliens not legally present in the U.S. (as recently happened with respect to ordinances passed by Flower Mound, Texas), and (b) which explain why Counties must give illegal aliens equal access to free medical care for the poor (Dallas County could save a fortune if Parkland Hospital was free to turn away injured or sick illegal aliens who were unable to pay for medical care), and (c) which explain why local school districts are obligated to provide free education to illegal aliens at very substantial cost to taxpayers. Frankly, I'd be more than happy to concede certain Constitutional rights to illegal aliens, like rights under the First and Fourth Amendments, if taxpayer-paid services, like medical care for the indigent and free public education, could be limited to citizens and aliens legally present in the United States. That is not to say I would completely deny medical care to the indigent illegal alien; I'd quite willingly pay the taxes necessary to provide that care for humanitarian reasons if, once healthy enough to travel, any illegal alien treated at taxpayer expense was discharged to the custody of the INS and promptly deported.
8.14.2008 11:33am
BGates:
Canada (1/10th the population) takes about 1/5th of the number of immigrants.
Yes, but those unfortunates are then forced to live among Canadians, which would be prohibited under the 8th Amendment in this country.
I doubt the court would invalidate a law allowing for suspicionless searches of the homes of legal aliens.
I'd give better odds for the ICC getting the day off to celebrate Donald Rumsfeld's birthday.
8.14.2008 11:55am
Dave D. (mail):
..." Our owned then-Judge Paul Cassel's opinion ".

....Is the Professor sending a message here ?
8.14.2008 1:04pm
Eugene Volokh (www):
Dave D: Maybe I'm missing the joke, but I thought I'd correctly written "our own" rather than "our owned" (though I admit that your comment gave me a scare).
8.14.2008 1:07pm
Duffy Pratt (mail):
If the fifth amendment is the only one that applies to illegal aliens, wouldn't that mean that the First, Fourth, Sixth and Eighth would also apply to them via incorporation and reverse incorporation. In other words, those amendments get incorporated into the due process clause of the Fourteenth Amendment, and the due process clause of the Fourteenth Amendment gets reverse incorporated into the Fifth. Thus, even though only the Fifth Amendment applies to illegal aliens, they would still get the protections of the others.
8.14.2008 1:36pm
mad the swine (mail):
Duffy Pratt:

The 14th Amendment says "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." The point of the cases mentioned above is that illegal aliens are not persons under the law. The 14th Amendment does not incorporate rights for illegal aliens because only citizens, "born or naturalized in the United States", come under the aegis of the 14th Amendment.
8.14.2008 2:00pm
Dilan Esper (mail) (www):
The point of the cases mentioned above is that illegal aliens are not persons under the law. The 14th Amendment does not incorporate rights for illegal aliens because only citizens, "born or naturalized in the United States", come under the aegis of the 14th Amendment.

It's pretty clear that illegal immigrants are persons under the Fifth and Fourteenth Amendments. Indeed, there are plenty of cases that apply limited due process protections to deportation proceedings, for instance.

Rehnquist's reasoning in Verdugo (which Cassell teed off in his attempt to write anti-Hispanic bigotry into the Fourth Amendment) was that an alien outside the country and with no connection to the US was not part of the "people" that the Fourth Amendment protects, even though he was a "person" who might receive the protection of other provisions of the Constitution.
8.14.2008 3:00pm
Duffy Pratt (mail):
mad the swine:

You are wrong about the cases mentioned above: they are about "the people," not about "persons."

You are wrong about the 14th amendment. Corporations, both foreign and domestic, are persons within the meaning of the 14th amendment. It does not apply just to citizens. (There are even some cases that hold that the state is entitled to due process, and by implication is a "person" within the meaning of the fourteenth amendment.)

You did however, somewhat miraculously, manage to quote the 14th amendment accurately. Kudos.
8.14.2008 3:00pm
Eugene Volokh (www):
Dilan Esper: It seems to me there are plenty of plausible views on the question whether "the right of the people" in the Constitution includes people who have no legal right to be here. Do you have any actual argument supporting your proposition that a "no" answer must represent an "attempt to write anti-Hispanic bigotry into the Fourth Amendment" -- and presumably Magistrate Judge Torres's attempt to write anti-Hispanic bigotry into the Second Amendment? Or is it just that you're so good at reading people's minds that you can tell that they're bigots?
8.14.2008 3:46pm
Melancton Smith:

The point of the cases mentioned above is that illegal aliens are not persons under the law.


If they are not 'persons under the law' are they fair game? Sounds a bit wrong to me.
8.14.2008 4:05pm
Dilan Esper (mail) (www):
Dilan Esper: It seems to me there are plenty of plausible views on the question whether "the right of the people" in the Constitution includes people who have no legal right to be here. Do you have any actual argument supporting your proposition that a "no" answer must represent an "attempt to write anti-Hispanic bigotry into the Fourth Amendment" -- and presumably Magistrate Judge Torres's attempt to write anti-Hispanic bigotry into the Second Amendment? Or is it just that you're so good at reading people's minds that you can tell that they're bigots?

Professor Volokh:

No, I don't think that the view that the "people" is some magical talismanic word that exempts the government from all restrictions with respect to brutally seizing and unreasonably searching suspected illegal immigrants is a serious legal position. I think it is a position that is motivated by animus against illegal immigrants, which in turn is motivated by animus against people who speak Spanish and have dark skin.

Now, can I prove that is what in anyone's heart of hearts? No. But since the legal position involves using clever semantic word games to say "ha ha, you have no rights, you aren't really people", and to inflict legal sadism against disfavored minority groups, I think it is possible to read between the lines here.

Further, Cassell is basically alone among judges. The Fourth Amendment has been repeatedly applied to illegal immigrants (as well as other aliens) for decades. I don't doubt that Rehnquist was ANGLING to do this in Verdugo, but he didn't have the votes for it (see Kennedy's concurrence) and Cassell was clearly engaged in judicial activism, trying to reach the maximal conclusion that Rehnquist couldn't get to.

Mr. Cassell may or may not be a nice guy (I remember his first go around as a law professor trying to undermine Miranda and strip us of that important constitutional protection), but I think his project to try and make illegal immigrants into nonpeople is disgusting and motivated by the basest motives, motives which are unfortunately common among many conservatives (listen to talk radio if you don't believe me).
8.14.2008 4:37pm
Eugene Volokh (www):
Dilan Esper: Well, you can call people bigots all you like, but I think your casually assuming that their position is bigoted -- and failing to acknowledge the pretty serious arguments in favor of it -- reveals more about you than about them. (Your connecting the question where someone is "a nice guy" to whether he would "strip us of that important constitutional protection of Miranda" does the same.)

As to the serious arguments, the Constitution starts with "We the people of the United States of America," which pretty clearly refers to a particular community. In light of that, treating "the right of the people" as referring to that community, or perhaps that community plus its invited guests -- and not noncitizens who are here illegally -- seems an eminently plausible result. The question isn't whether they are really people, just as Verdugo-Urquidez doesn't suggest that foreigners in foreign countries aren't really people. Of course illegal aliens, foreigners in a foreign country, and for that matter soldiers fighting a war against us in a foreign country (to take an extreme example) are all "people." The question is whether they are protected by something denominated "the right of the people."

One can certainly argue substantively that they should be so protected, but you didn't. You just decided to engage in name-calling.
8.14.2008 5:18pm
Eugene Volokh (www):
Apropos the other comments, I don't know of any cases holding that illegal aliens aren't persons under the law, and Plyler v. Doe certainly held that they are covered by the Equal Protection Clause. (I think Plyler's application of the Equal Protection Clause is mistaken, however.) Certainly they are persons; the question is what legal rights they should have.
8.14.2008 5:20pm
Tony Tutins (mail):

Illegal aliens are committing a crime.

Nope. Unless things have changed recently, entering or remaining in the country illegally is not a crime. Deportation is the only penalty.
8.14.2008 6:04pm
Eugene Volokh (www):
Note that Paul Cassel's opinion dealt with an illegal alien who had committed a crime of unlawful reentry after deportation, . (I agree that the Second Amendment opinion I referred to does not focus on that, but deals more broadly with illegal aliens, period.)
8.14.2008 6:27pm
Dilan Esper (mail) (www):
As to the serious arguments, the Constitution starts with "We the people of the United States of America," which pretty clearly refers to a particular community. In light of that, treating "the right of the people" as referring to that community, or perhaps that community plus its invited guests -- and not noncitizens who are here illegally -- seems an eminently plausible result. The question isn't whether they are really people, just as Verdugo-Urquidez doesn't suggest that foreigners in foreign countries aren't really people. Of course illegal aliens, foreigners in a foreign country, and for that matter soldiers fighting a war against us in a foreign country (to take an extreme example) are all "people." The question is whether they are protected by something denominated "the right of the people."

Professor, with due respect, you have argued passionately that preambles don't effect the meaning of operative clauses. So "we the people" doesn't get you where you want to go, unless you totally want to rethink your interpretation of the Second Amendment.

Further, though, the problem with what you are saying is that it makes no sense to claim that a fundamental human right-- to be treated fairly by law enforcement-- turns on whether one is a member of a particular community. Indeed, given that the objections that gave rise to the Fourth Amendment (against general warrants and the like) had nothing to do with citizenship, the idea that you can just seize on "the people" and say you see, gotcha, illegal immigrants aren't part of "the people" is something that no reasonable person would do, unless they had a political agenda against illegal immigrants.

The obvious point here is that the right of the people to be secure against unreasonable searches and seizures is the right of persons, plural, to be secure, given the history of the Fourth Amendment, the fundamental right that it secures, and the unfairness that would result if Cassell's proposal were actually adopted.

Let's be specific here. In Cassell's world, a Border Patrol agent could see several individuals with brown skin crossing the border, drive their truck towards them recklessly and run them over, and then give them an anal cavity search in the middle of the Arizona desert. In Cassell's world, in fact, the Department of Homeland Security can search YOUR house and ransack every room, if they suspect you share it with an illegal immigrant, so long as the DHS reasonably and in good faith believes that the illegal immigrant (who might not even be illegal) has authority to let them on the premises.

That's what we are talking about here. A person who so hates illegal immigrants that he is willing to approve vast abusive government powers, of exactly the sort that actually gave rise to the revolution that formed this country.

I realize you disagree, but to me, this is not even close. There's no way an otherwise rational mind comes to that position except by feeling that the illegal immigrants are not, in fact, people, that they are without any human rights that the white man is bound to respect. See, e.g., Dred Scott v. Sandford.
8.14.2008 6:32pm
A. Zarkov (mail):
ARCraig:

"I'd like to think we can hold ourselves to a higher standard than "marginally better than any one else". That was certainly the original idea."

If we are only "marginally better," then the sentiments can't be "very strong" as compared to other countries. Saying "very strong" carries the implication that the US differs from the norm and it doesn't.
8.14.2008 6:43pm
A. Zarkov (mail):
If Mexico invaded the US, what rights (if any) would the soldiers have? If they took off their uniforms would that make a difference? It seems to me that one can carry the idea that anyone here illegally should be treated as a "person" in a legal sense, and therefore entitled to all the provisions of the Bill of Rights, is going too far. At some point common sense must take hold. Where is that point?
8.14.2008 6:57pm
Perseus (mail):
In Cassell's world, a Border Patrol agent could see several individuals with brown skin crossing the border, drive their truck towards them recklessly and run them over, and then give them an anal cavity search in the middle of the Arizona desert. In Cassell's world, in fact, the Department of Homeland Security can search YOUR house and ransack every room, if they suspect you share it with an illegal immigrant, so long as the DHS reasonably and in good faith believes that the illegal immigrant (who might not even be illegal) has authority to let them on the premises.

This is the same sort of utter demagoguery we got from Senator Kennedy in his speech about "Robert Bork's America."

Let's see how Dilan Esper's claims square with what Judge Cassell actually wrote:

Because of its broader language-protection of all "persons" rather than"the people"-it appears that Fifth Amendment due process requirements protect all within America's borders, even previously removed alien felons. ...Due process requirements provide protection against abusive police actions. The Supreme Court has held that the requirements "guarantee more than fair process, and ... cover a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them." As explicated in a series of decisions starting in 1952, due process forbids police action "that shocks the conscience" and violates the "decencies of civilized conduct."

Why should we believe that Judge Cassell would fail to consider seriously a 5th amendment challenge to border patrol agents who recklessly drove their truck towards individuals crossing the border, ran them over, etc.?
8.14.2008 9:31pm
Eugene Volokh (www):
Dilan Esper: You're mistaken -- I have certainly not argued that preambles don't affect the meanings of operative clauses. If you disagree, please point to where I have made such an argument (if you think it's in my Commonplace Second Amendment piece, you're wrong). In particular, that a phrase is used in a particular way in a preamble (or any other part of a document) is surely a guide to how that same phrase is likely used in another part of the document.

As to the substance, there's a difficult question of political theory and constitutional interpretation here -- does the Bill of Rights set forth legally binding rules that apply to everyone throughout the world (even foreigners in foreign countries), does it set forth legally binding rules that apply only to people who are in some measure part of the national community, does it set forth legally binding rules that apply to all people present in places that are sufficiently linked to the U.S., or does it do some mix of these?

You seem to endorse the broadest view, under which the Constitution's references to "the right[s] of the people" protect "fundamental rights" of everyone everywhere (that's the logic of your outrageous-violations-of-fundamental-human-rights argument, though you apply it only within the U.S.). Verdugo-Urquidez expressly rejected this view, and concluded that the Constitution doesn't set forth legally binding norms that protect "fundamental human rights" everywhere. But maybe you're right, and Verdugo-Urquidez is wrong. And maybe at least Verdugo-Urquidez should be read as limited to the rights of foreigners overseas, and not extended to illegal aliens within the U.S.

But you seem to assume that your view is so obviously correct -- and presumably not just Cassell's view, but also the Court's view in Verdugo-Urquidez, which takes the view that this supposedly "fundamental human right" isn't legally extended to non-American humans outside the U.S., are so obviously wrong -- that people who disagree with your view must be bigots. That's a remarkably intolerant position itself, it seems to me, so focused on its supposed righteousness that anyone who doesn't treat it as being legally embodied in the Constitution must be anti-Hispanic. That's bunk, and I hope the rest of us will be refused to be mau-maued out of a serious debate on important and difficult constitutional and political questions by unsupported and prejudiced accusations such as yours.
8.14.2008 11:47pm
Duffy Pratt (mail):

As to the substance, there's a difficult question of political theory and constitutional interpretation here -- does the Bill of Rights set forth legally binding rules that apply to everyone throughout the world (even foreigners in foreign countries), does it set forth legally binding rules that apply only to people who are in some measure part of the national community, does it set forth legally binding rules that apply to all people present in places that are sufficiently linked to the U.S., or does it do some mix of these?


I think this is an unfortunate way to frame the debate. The Bill of Rights doesn't create rights and then apply them to groups of people. It creates additional limitations on the powers of the already limited federal government.
8.15.2008 1:09am
ReaderY:
The right of a nation to control its territory, to control who and when to allow into the country is a matter of soveriegnty and autonomy, as much a part of the self-definition of sovereignty as the right to control who and when to have children. If it were subject to moral fetters, it wouldn't be sovereignty. The war power gives Congress the power to make it lawful to kill aliens, and the courts get no veto power and no say if someone claims a war is unjust or a weapon too barbaric. Why shouldn't it give the power to allow in and kick out at whim? To be a free country is to be free to be amoral.

The rights of the people apply only to people, just as the rights of persons only apply to persons. Nobody claims there are any fundamental human rights, rights are limited only to persons. Why shouldn't there be rights that are limited to the people?

Professor Volokh, you've occassionally expressed distaste for some of the arguments I've made. But they reflect real paradoxes in the law, paradoxes that are coming to haunt us. In my view, one necessary failsafe is that courts shouldn't interpret the constitution to prevent government from being more expansive about the class protected by various kinds of rights if it wants to be. The fact that so much of the constitution is potentially interpretable in very restrictive ways makes this issue particularly relevant in a world where those restrictions are taken increasingly seriously. What if a court were to declare that Congress can't grant POWs additional rights because it interferes with the power of the President? What if it were to declare that the rights of Americans outweigh the rights of non-Americans, and that "the people" have fundamental rights which sometimes require trampling on the non-people in ways government can't stop? Eliminating the democratic failsafe, the ability to make a democratic appeal based on general moral tradition and values, is a dangerous road to go down.
8.15.2008 1:38am
arturo fernandez (mail):
Illegal immigration exists in capitalist USA because its citizens employ these people. They do so to better compete in an economy conceived to best give consumers what they want. Illegal immigrants are therefore owed something. Or are we going back to seeing those who work for us as nonpersons?
8.15.2008 2:55am
D K Warren (mail):
In 2005, then-Judge Cassell issued another ruling which limited the effect of his 2003 decision mentioned at the beginning of this post.

In U.S. v. Atienzo, 2005 WL 3334758 (D. Utah 2005) he held that the sole fact that someone is an illegal alien does not automatically deprive them of the protections of the Fourth Amendment. Specifically:
The reasoning of Esparza-Mendoza does not automatically require the conclusion that illegal aliens who are not felons are categorically barred as a class from asserting Fourth Amendment rights. The opinion rests in no small part on the unique status of felons-who are generally excluded from the political process. With respect to illegal aliens who are not felons, the decision whether they fall outside the Fourth Amendment would seem to require a case-by-case determination.
Atienzo first came to the U.S. illegally in 1996. In 2000 he was convicted on misdemeanor charges and was then deported, but he returned to the U.S. illegally several months later. Contrary to (and distinguished from) the 2003 case, however, then-Judge Cassell found that the defendant did have protection under the Fourth Amendment and granted the suppression of evidence.

As the opinion mentions, it may be possible to have sufficient connections to the community despite being an illegal alien. And having accepted some societal obligations in this regard, an individual may yet be entitled to claim certain constitutional protections.

So perhaps the question isn't so much whether they're illegal, but what class of illegal they fall into.
8.15.2008 4:58am
J. Aldridge:
ARCraig said: "Can there really be much "original intent" on this question? It seems like the obvious answer on that is that the Founders weren't really thinking of legal or illegal aliens one way or another when they drafted the Bill of Rights."

The framers also wasn't thinking of legal or illegal immigration in other parts of the world for the simple reason national government was not empowered to establish policy or regulations involving immigration within states. Only way Congress could address immigration matters was within its territories but not states.
8.15.2008 6:54am