Editor’s note: This article is the first in a series on the Supreme Court’s Term.
The Supreme Court Term is finally over, and the time for thematic summaries has begun. Many this year have emphasized this term’s judicial restraint, or “minimalism.” Commentators have singled out Chief Justice Roberts as exemplifying this trait. And perhaps because the Trump Administration has put immigration law issues front and center, Court observers consistently point to the term’s signature immigration decision – DHS v. Regents of U.C. – in support of their claim. That decision preserved the immigration status of so-called “dreamers,” while also preserving the government’s power to rescind their status. Regents did not bar the Administration from ending the Deferred Action for Childhood Arrivals (“DACA”) program; it simply required the government to exercise more care in its decision-making. The overall effect of the opinion preserves an important institutional value even while leaving to others the ultimate decision on whether to maintain DACA.
While this is a fair characterization of Regents, using it to understand this Term’s immigration jurisprudence, let alone the Court’s direction as a whole, is a huge mistake. Two cases decided after Regents at the end of the term—DHS v. Thuraissigiam and USAID v. Alliance for Open Society International—drew far less attention, but could ultimately have far more significance for the rights of noncitizens. Unlike Regents, both dramatically expand the federal government’s power at the expense of noncitizens, and both do so in ways that manifest shocking disregard for prior precedent. They reach out to decide important questions in a sweeping fashion, rather than resolving only those questions needed to decide the case at hand. The Chief Justice did not author either of them, but in each he provided the decisive fifth vote. The approach taken in these important cases is the opposite of “minimalism,” and they provide important lessons for the long-term agenda of the Roberts Court.
Stripping Every Noncitizen Abroad of All Constitutional Rights?
The first case involved an issue one might think could be decided with almost no categorical statements on the rights of noncitizens. The question in USAID v. Alliance for Open Society International concerned whether the government could require the foreign affiliates of American nongovernmental organizations to expressly oppose prostitution and sex trafficking in order to receive certain government funds. The organization argued that this requirement violated the First Amendment’s prohibition on compelled speech. The case did not obviously present any more general question about whether noncitizens have constitutional rights. As Justice Breyer’s dissent explained, no foreign individual or organization was party to the case, and the courts below treated the plaintiff organizations as American.
Nonetheless, Justice Kavanaugh’s opinion for the Court resolved the case by first answering an enormously significant question by any measure: do noncitizens outside the United States have any rights under the U.S. Constitution? He said no. That question had never before been resolved by the Supreme Court. Justice Kavanaugh’s opinion stated unequivocally and categorically, for the first time ever, that noncitizens outside the United States have no rights under the U.S. Constitution.
The Court characterized this as a bedrock principle of American constitutional law. It is anything but. Since at least the late nineteenth century, the Court has grappled regularly with questions related to the constitutional rights of noncitizens beyond our borders. This is unsurprising. The government often exerts power over individuals outside U.S. territory, and it is far from obvious that the Constitution would extend no protections in all such situations. Indeed, in well over a century of litigation concerning the constitutional rights of noncitizens abroad, the Court had never held that all noncitizens outside of U.S. territory are beyond the protection of every provision of the Constitution. Instead, the Court had scrupulously avoided answering the question in any categorical fashion whenever it arose. Just last term, for example, the broad question whether noncitizens outside our borders have constitutional rights was squarely before the Court in Hernandez v. United States. The family of Sergio Hernandez, a Mexican teenager, brought that suit after a U.S. border patrol agent shot and killed Hernandez while he stood in Mexico just a few feet from the U.S. border. If Sergio had no constitutional rights because he was a noncitizen outside of U.S. territory, the case could have been resolved in just a few short paragraphs. But the Court assiduously declined the government’s invitation to hold that Hernandez had no constitutional rights while in Mexico, resolving the case instead on narrower grounds.
This Term all that careful avoidance went by the wayside in the opening paragraphs of the Court’s decision in USAID. Justice Kavanaugh wrote: “Plaintiffs’ position runs headlong into two bedrock principles of American law. First, it is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U.S. Constitution.”
The string cite of precedents that follows this statement does not support it. Most obviously, none of them say it. If it were a “long settled” and “basic principle” of American law that noncitizens abroad can never assert constitutional claims, one would have expected that statement to appear in some prior case, but it does not. Instead, the five cases the Court cites all deal with unique circumstances involving noncitizens abroad. Three of the five cited cases (Boumediene v. Bush, Hamdi v. Rumsfeld, and Johnson v. Eisentrager) concern people who allegedly waged war against the United States, one of whom was a citizen. It should be obvious that the rules from these cases may not be generalizable. The other two (United States v. Verdugo-Urquidez and United States ex rel. Turner v. Williams) as well as the Court’s cryptic reference to the Constitution’s preamble, concern claims arising under the small number of constitutional provisions referencing “the people.” In those cases, the Court suggested that those provisions could have narrower protections than constitutional provisions, such as those referencing “person[s]” or “the accused”—the idea being that “the people” might include only members of the political community. Nowhere do these five cases endorse the general claim made in USAID. Moreover, none of the Court’s cited cases involve the most obvious candidates for claims by noncitizens abroad—lawful permanent residents or other noncitizens with significant connections to the United States. At least one Court of Appeals had recognized a constitutional claim brought by such an individual.
The approach taken in these important cases is the opposite of “minimalism,” and they provide important lessons for the long-term agenda of the Roberts Court.
There is a substantial scholarly debate about what these cases (and plenty of others) mean for the Constitution’s extra-territorial reach—including about what significance, if any, to attach to the use of “the people” in some constitutional provisions but not others, to wartime context, and to a person’s connections and status (short of citizenship) with the United States. That debate offers insights into how one might resolve the Court’s treatment of the plaintiffs in USAID with its narrower approach in other cases, such as in Hernandez. For example, a nuanced discussion might conclude that foreign corporate entities operating in areas where the U.S. clearly exercises no sovereignty have no constitutional rights, whereas noncitizens with substantial ties to the U.S. who live in border areas or other ambiguous regions might have claims under at least some constitutional provisions. We will not get into that debate here. Our point is simply that the Court’s discussion contains no such nuance. On its face, it appears to have resolved an enormous question with virtually no discussion and in the most categorical fashion possible. That is not the work of a minimalist Court.
Closing the Courthouse Doors to All Immigrants Facing Deportation?
The Supreme Court’s second major decision regarding the constitutional rights of noncitizens was perhaps even more unrestrained. This time, rather than simply choosing to answer a question long left unanswered, the Court actually reversed course on one hundred years of doctrine that had protected access to court for immigrants facing deportation.
Once again, the issue before the Court was ostensibly narrow. In 1996 Congress had enacted a scheme for expedited review of certain asylum claims. Under that scheme, Congress stripped the federal courts of almost all authority to review asylum claims that had been rejected through this summary process. Mr. Thuraissigiam, a Sri Lankan national and ethnic Tamil – a group that has long suffered horrific persecution and violence at the hands of the Sinhala majority in that country – unlawfully crossed the southern U.S. border. Border Patrol agents apprehended him about 25 yards inside the United States. Under the 1996 law, Homeland Security officials gave him a summary hearing and found that he lacked a “credible fear” of persecution in Sri Lanka. He sought federal court review of that decision, arguing that the statute restricting review of his deportation order effectively suspended the writ of habeas corpus – which provides a means to seek release from unlawful restraint on liberty – in violation of the Suspension Clause of the Constitution. This clause states in relevant part, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
To be sure, Thuraissigiam’s claims did not clearly warrant protection under existing precedent. Prior doctrine had generally limited the Suspension Clause’s protections to legal claims, such as a claim that Congress had not authorized deportation on the basis asserted by the agency. While Thuraissigiam characterized his claims as legal, they were arguably quite fact-intensive. For example, he claimed DHS officials had displayed insufficient knowledge of conditions in Sri Lanka when assessing his claim. Indeed, Justice Breyer (joined by Justice Ginsburg) concurred on just this ground, concluding that Thuraissigiam’s claims were too fact-intensive to qualify for protection under the Suspension Clause.
But the five-member majority chose to decide the case on far, far broader grounds. The Court instead addressed the question whether the Suspension Clause requires judicial review in deportation cases at all. That issue had long been settled, as the Court had most recently concluded in its 2001 decision in INS v. St. Cyr. In St Cyr, the Court reviewed the relevant common law history, as well as later immigration precedent in concluding that “because of [the Suspension] Clause, some ‘judicial intervention in deportation cases’ is unquestionably ‘required by the Constitution.’” St. Cyr relied on Heikkila v Barber, a 1953 decision, which reviewed thirty years of deportation cases decided under the 1917 Immigration Act, concluding that the judicial review exercised in those cases was that “required by the Constitution.” Heikkila v. Barber, 345 U. S. 229 (1953). Heikkila described this view as “settled” based on its reading of still more cases.
To be sure, the facts of both cases were quite different from those in Thuraissigiam. St. Cyr involved a lawful permanent resident, and Heikkila involved a challenge under the Administrative Procedures Act, not a habeas corpus petition. But those are hardly reasons even to revisit, let alone reject, the plain statements of law both decisions contain. Yet the Court did exactly that. It rejected both St. Cyr’s treatment of the common law and Heikkila’s reading of the cases decided under the 1917 Act in order to establish a new constitutional rule regarding noncitizens never before stated by the Supreme Court (or, so far as we can tell, even any lower court): that the Suspension Clause does not give noncitizens the opportunity to assert their right to remain lawfully in the United States by habeas corpus. Whatever else may be said of this extraordinary rejection of well over one hundred years of historical practice, it is not judicial minimalism.
Denying Due Process to Noncitizens Within the United States?
Although the Court’s sweeping Suspension Clause holding was almost certainly sufficient to resolve Thuraissigiam, the Court reached out to decide yet another question about the constitutional rights of noncitizens: whether Thuraissigiam could challenge his summary removal under the Due Process Clause. Because the Court had already held that Thuraissigiam had no right to be in court at all, there was no need for it to consider his Due Process claim. He had not asserted that the Due Process Clause itself provided an independent, constitutionally-required right to be in court. But the Roberts Court went ahead anyway.
Here too, the question was one that the Supreme Court had carefully avoided squarely answering for more than a century. Some points about the due process rights of noncitizens facing expulsion from the United States are relatively well-settled. Resident noncitizens, the Court has long held, can be deported only pursuant to procedures that comport with due process. Noncitizens stopped at the border, in contrast, are on shakier ground. At the outset of the Cold War, the Supreme Court twice stated that noncitizens stopped at the border can demand only whatever procedures Congress has chosen to provide. Under this “entry fiction” doctrine a noncitizen at a port of entry is treated as if stopped at the border, even if the port of entry is located physically within the geographic territory of the United States (think: Los Angeles International Airport). This doctrine is regularly applied by lower federal courts, though several Justices had expressed skepticism toward it over the decades, and the Court had twice declined to rely on it.
But what about noncitizens who have entered the country illegally and are apprehended very shortly thereafter? Their status has long been unclear. The Supreme Court had suggested competing answers on several occasions, but only in dicta. Some of that dicta was categorical: “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.” Other times the dicta has been more qualified: “an alien seeking initial admission … has no constitutional rights regarding his application … however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.”
Yet after steadfastly resisting opportunities in the last 70 years to squarely resolve this incredibly important question concerning the rights of recent entrants, the Court did so in less than three pages tacked on to the end of the Thuraissigiam opinion. The Court stated that Thuraissigiam had no Due Process rights with respect to his application for admission, even though he had been arrested within U.S. territory. In doing so it both doubled down on the “entry fiction” doctrine applied at the border and extended that rule into the interior—to an uncertain extent.
That the Court decided this question after more than one hundred years is itself remarkable. That it did so without any mention of (or engagement with) the long-running doctrinal debate surrounding this thorny due process issue is highly extraordinary. Again, this is not judicial minimalism.
Denying All Constitutional Rights to Recent Entrants?
Perhaps the most disturbing possibility arising from the Court’s extreme approach in USAID and Thuraissigiam comes when one considers them together. In responding to Thuraissigiam’s assertion that his summary removal violated the Due Process Clause, the Court held that he could not challenge his removal on due process grounds because he had to be “treated for due process purposes as if stopped at the border.” If one combines this with the newly-minted principle from USAID, “that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution,” does it follow that Thuraissigiam too has literally no rights under the U.S. Constitution? If so, then far more is at stake than just due process rights regarding Thuraissigiam’s application for admission.
Thuraissigiam itself does not say this, and we think for good reason. The Court was quite clear that Thuraissigiam, like people stopped at the border itself, was “on U.S. soil.” The entry fiction is applied by the Court only to limit his due process right to challenge “the procedures to be followed in determining whether [he] should be admitted.” Nothing in the Court’s opinion suggests he could not have challenged other government conduct, such as torture.
In fact, in an opinion otherwise bereft of any recognition that Thuraissigiam had any rights at all, the Court’s penultimate paragraph appears to recognize that he has a right to the procedures Congress put in place (here a “determination” on whether he had a “significant possibility” of obtaining asylum), although only because those minimal rights are guaranteed by the statute. At least implicitly, therefore, the Court appears to be respecting some historical limits on the entry fiction doctrine. But who knows whether such limits will be recognized by lower courts or sustained by the Supreme Court in future cases. Indeed, some commentators have already begun to read the Court’s holdings in USAID and Thurassigiam (mistakenly in our view) as spelling the demise of all constitutional rights for recent border crossers. And it would be no surprise if some lower courts soon read the cases together to reach that draconian conclusion.
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Attempting to find a common theme in the decisions of a single term is always a hazardous enterprise, and that is particularly true here, where the short-term effect of the Court’s most widely-anticipated immigration case (by far) was to preserve the immigration status of nearly 700,000 people. But as our detailed review suggests, the picture is not so simple. In USAID and Thuraissigiam, the Roberts Court has dramatically enhanced the government’s power over noncitizens, going where prior Supreme Court justices had been unwilling to go for decades. Years from now, we may well view these cases as having done far more to undermine the rights of noncitizens than Regents did to uphold them. Whether or not one views this as a positive development, it is not the product of a restrained approach.