With all due respect to the Emoluments Clauses, perhaps the most important set of constitutional questions implicated by the presidential transition involves the individual rights of non-citizens, be they immigrants physically in the United States (with or without lawful status, Muslim and otherwise), arriving non-citizens stopped “at the border,” refugees seeking shelter from active war zones or other inhumane conditions, or those on foreign soil who are subjected to U.S. uses of force (whether through cross-border shootings, drone strikes, or otherwise). That’s why it’s such a profoundly interesting (and important) coincidence that, at virtually the same time as the inauguration, the Supreme Court is in the midst of grappling — in four different cases — with some of the most important questions it’s considered in decades about whether and to what extent the Constitution even applies in these contexts.

After briefly summarizing the four cases currently raising these questions — Jennings v. RodriguezZiglar v. AbbasiHernández v. Mesa (in which I’m co-counsel to the Petitioners, although I’m writing here only in my personal capacity), and Castro v. Dep’t of Homeland Security — this post explains why, together, they represent such a critical moment for the Justices, the Court, and the Constitution.

And just to skip to the punchline, that moment is nigh; Court-ordered supplemental briefs in Jennings are due next Tuesday; Abbasi is being argued next Wednesday; the government’s response to the cert. petition in Castro is due on January 26; and Hernández (in which the government and the officer defendant filed their merits briefs on Monday) is being argued on February 21. Ultimately, although these cases each raise their own array of legal questions, the basic choice they collectively present to the Supreme Court is whether to constrain or empower the new President in an area in which he has already promised a series of aggressive (and, in at least some cases, constitutionally suspect) reforms.

I.  The Cases

I’ve written about all four of these cases before (and at some length), and so will focus here not on describing them in detail, but rather on flagging the specific constitutional question(s) they present:

a.  Jennings

As I noted in a long post back in DecemberJennings is an immigration detention case about how long the government can detain different classes of non-citizens subject to removal pending deportation, and whether those detainees are entitled to periodic review during that detention (such that they will be entitled to release unless the government can show that they pose “a flight risk or a danger to the community”). The Ninth Circuit for the most part sided with the non-citizen plaintiffs, but solely as a matter of statutory interpretation (with some constitutional avoidance mixed in). But after the November 30 oral argument before the Supreme Court, the Justices ordered supplemental briefing on how (if at all) the Constitution itself limits the detention of each class of plaintiffs in Jennings, and whether the Constitution requires the periodic review that the Ninth Circuit mandated in its ruling below.

The reason why the constitutional questions in Jennings are so momentous is because they basically turn on whether and to what extent different classes of non-citizens (including both some lawfully present in the United States, some literally stopped “at the border,” and some in between) are protected by the Fifth Amendment’s Due Process Clause. And that, in turn, brings the Justices face-to-face with their major (and controversial) 1950s-era cases on the plenary power doctrine and the “entry fiction” — pursuant to which the Constitution has nothing to say about the due process rights of “arriving aliens” physically stopped at the border. The decisions in Mezei and Knauff have long been criticized (and the Court itself has more recently shown some disinclination to read them broadly). But they’re still on the books. If Jennings narrows / expands / reaffirms them, that would have potentially enormous consequences not just for non-citizens seeking entry to the United States, but those already here without lawful status. The opening supplemental briefs are due next Tuesday, so we’ll soon see just how aggressively the Justice Department intends to push Mezei and Knauff beyond the narrow, limited circumstances they presented.

b.  Castro

Whereas Jennings is about what limits, if any, the Due Process Clause places on the long-term detention of different classes of removable immigrants, Castro v. Dep’t of Homeland Security raises an even more fundamental question about judicial review. As I explained in a verbose post back in August, the issue in Castro is whether the Suspension Clause applies to non-citizens physically but not lawfully present within the United States, such that they’re entitled to meaningful judicial review of their detention (pending removal), and, as in Castro, their entitlement to seek asylum. In its (in my view, deeply flawed) decision below, the Third Circuit answered that question in the negative, relying on Mezei and Knauff to hold that those physically but not lawfully present on U.S. soil aren’t really “in” the United States for constitutional purposes, even if they were not physically stopped at the border. Given the Supreme Court’s 2008 decision in BoumedieneCastro effectively suggested that non-citizen enemy combatants detained at Guantánamo have a greater right to judicial review than Central American migrant mothers (and their minor children) physically, but not lawfully, present in the United States. More generally, Castro could be read to suggest that any non-citizen on U.S. soil who does not have lawful immigration status is not entitled to habeas, and is more broadly subject to the entry fiction, even though the Supreme Court has long and repeatedly endorsed at least some constitutional protections for undocumented immigrants living in the United States.

The cert. petition in Castro raises two separate — but equally important — constitutional questions: First, does the entry fiction really apply to non-citizens physically, but not lawfully, present within the United States (and not just stopped at the border)? Second, even if it does, does it also apply to the Suspension Clause — especially after, and in light of, Boumediene? The government’s response is due (for now) on January 26, although the Solicitor General may well seek an extension (which, among other things, might provide time for President Trump’s Justice Department to weigh in).

c.  Abbasi and Hernández

Jennings and Castro are both habeas cases. But the Court is also set shortly to hear a pair of Bivens suits (claims for damages arising directly under the Constitution) brought by non-citizens — one (Abbasi) arising out of the post-9/11 immigration roundup of Muslim immigrants (and/or those of Arab descent) in and around New York City, and one (Hernández) arising out of a Customs and Border Patrol agent’s fatal cross-border shooting of an unarmed 15-year-old Mexican national. The American Constitution Society has just released a new “Issue Brief” I put together detailing the cause-of-action issues in both cases, so I’ll respectfully refer readers to that document for a discussion of the cause-of-action question at the core of both cases. But the government is also arguing in each case that the government officer-defendants are entitled to qualified immunity — which, given that both cases come to the Supreme Court on appeal from motions to dismiss, necessarily requires the government to accept the facts as alleged in the complaint and argue:

  • In Abbasi, that it was not clearly established in late 2001 that selecting non-citizens for solitary confinement and other punitive treatment based solely on their race, religion or ethnicity without any basis to suspect a connection to terrorism violated due process and equal protection; and
  • In Hernández, that it was not clearly established in 2010 that it violates the Fourth or Fifth Amendments for a Customs and Border Patrol agent to use excessive (lethal) force, without justification, against an unarmed individual (whose citizenship and relationship to the United States was unknown) standing just across the border on Mexican soil.

Needless to say, if the Supreme Court accepts (and relies upon) these arguments in its rulings in either / both cases, that would also have potentially significant constitutional ramifications far beyond these cases, whether for “extreme vetting”; registries (or categorical entry bans) based upon particular religious affiliation or national origin; and/or more aggressive uses of force at the physical U.S. border. Rulings that the law was clearly established in either/both of these cases would also have ramifications — but almost certainly more in constraining such new developments than in empowering additional lawsuits for past abuses. And Hernández, unlike Abbasi, also raises the pure “merits” question of whether a Mexican national standing on soil over which the United States exercises such pervasive and consistent law enforcement authority can claim the protections of the Fourth Amendment — which, for obvious reasons, could say a lot about broader debates over the extraterritorial scope of the Constitution, and whether formal or functional analysis should govern that issue.

Abbasi will be argued next Wednesday (more than a little ironically, the last argument of the Obama administration), and Hernández will be argued on February 21 (equally ironically, the first argument of the Trump administration).

II.  The Implications

If you’re still reading (hi, mom!), it should hopefully be clear just how critical a moment this may be for how we (and, more importantly, the Justices) apply the Constitution to (1) non-citizens physically and legally present in the United States; (2) non-citizens physically but not legally present in the United States; and (3) non-citizens at the border. Not since the 1950s has the Supreme Court faced such a battery of major constitutional questions about the rights of non-citizens in such short order. Of course, the Justices could duck; Jennings could be resolved on statutory grounds; cert. could be denied in Castro; and Abbasi and Hernández could theoretically be disposed of without saying anything about how the Constitution applies.

But avoidance of these momentous constitutional questions may be short-lived. As Shirin Sinnar observed in a pointed op-ed about the Abbasi case in Monday’s Washington Post, “President-elect Donald Trump has pledged to torture terrorism suspects, ban Muslims from entering the country, banish more prisoners to Guantanamo Bay and round up millions of undocumented immigrants.” In addition to the due process, equal protection, and habeas questions flagged above, such actions may also raise novel but monumental First Amendment questions, as I explained in a December 2015 post about then-Candidate Trump’s proposed “Muslim ban.” And even the more modest versions of some of these proposals — including “extreme vetting” and/or a more aggressive use of the “NSEERS” program — would almost certainly provoke constitutional objections, as David Cole (among others) has explained. All of this is to say nothing of the plans, programs, and policies about which we have not yet heard.

Nor is the increasing constitutional significance of the border limited to the rights of non-citizens on either side: Questions about how the Constitution and various statutes deal with the flow of data across borders are causing their own headaches, as highlighted by the Microsoft search warrant case in which the government’s petition for rehearing en banc is currently pending in the Second Circuit (and as more thoroughly discussed in Jen Daskal’s fantastic Yale Law Journal article on “The Un-Territoriality of Data“). And more aggressive counterterrorism activities overseas could also reignite debates over whether the Constitution protects citizens abroad to the same extent as it does at home (at least in the context of the Fourth Amendment’s Warrant Clause, two circuits have held that the answer is “no”).

Of course, the four cases highlighted in this post began their trek to the Supreme Court long before November 8 (the complaint in Abbasi was filed on April 17, 2002 (not a typo). And the constitutional questions they present would have been a big deal during the Bush administration, the Obama administration or the (Hillary) Clinton administration, too. But it seems beyond peradventure that at least some groups of non-citizens are likely to bear the especial brunt of at least some of the policies articulated by President Trump and his subordinates. From the perspective of the Office of the Solicitor General, that makes them markers for assessing how (or if) the change in administrations affects the government’s position in these cases (perhaps not, given how aggressively even the Obama administration has litigated these cases). But far more importantly, from the perspective of the Supreme Court, it’s an unprecedented opportunity to clarify who is, and who is not, protected by some of the Constitution’s most important provisions before the uncertainties in existing doctrine can be (further) exploited.

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