The Constitution of the United States is our founding document. It sets principles for our laws and our conduct pertaining to them. But, regardless of our appreciation of its genius, it doesn’t apply universally beyond our borders. According to Supreme Court decisions, there are even limits to its application to our own citizens when they are residing abroad. And when foreigners are concerned, its applicability is very limited. In general they gain its protections only when they step on U.S. soil. The specific legal exception is when a foreigner has an established relationship with our country, such as holding a visa or a green card.
So, what does this mean for the current dispute over President Trump’s executive order pertaining to immigrants from seven specific international hotspots? I have read arguments by informed scholars on this topic and as usual they don’t fully agree. However, I am always attracted to analyses that seem more objective because they contradict expectations. Harvard’s Alan Dershowitz is a renowned constitutional expert who espouses generally progressive viewpoints. But recently in a television interview, he forthrightly argued that due process rights don’t extend beyond our borders to non-citizens. This was my belief also, but I have no legal pedigree to back it up.
The recent decision by a federal judge staying this executive order cites, among other things, the violation of due process rights of potential immigrants from the specified seven countries. I believe that is a reversible error, but it is possible that other constitutional arguments may be relevant. For example, there is the issue of fair application of our laws and implementation procedures. Is this a proscribed ban on Muslims, as many proclaim? If it is, then it is so incompetently written that it fails almost totally to achieve its objective, so perhaps we should give it a pass. After all, it doesn’t apply to the vast majority of Muslims. If the Trump administration wished to ban Muslims, how could they have overlooked Indonesia, Pakistan, India, Egypt, Bangladesh, Turkey, and Nigeria, just to mention a few? Still, Trump’s statement that an exception should be carved out for Christians is revealing and perhaps damning.
It seems likely that this executive order will be argued before the Supreme Court because there have been conflicting decisions in lower courts. When this happens I suspect that the order will be blocked. However, that will almost certainly not be based on the merits of the case!
The reason for this is aptly encapsulated in a comment by SCOTUS nominee Judge Neil Gorsuch, “A judge who likes every outcome he reaches is very likely a bad judge.” I wholeheartedly agree. I think we have at most only two Supreme Court justices who successful pass this test, Chief Justice Roberts and Justice Kennedy. If you can always – always – predict a judge’s opinion simply by knowing the nature of the case then they are not judges at all, they are advocates. This indictment applies to a significant degree to the remaining six justices, as it certainly did to the recently deceased Antonin Scalia.
Reasonable people might disagree with Gorsuch’s observation because it will mean that occasionally a good judge must rule against his instincts and beliefs solely in support of the written law. Of course, one could always point to bad laws that should not receive such respect. However in general, laws are not bad or written with evil intent, and interposing one person’s beliefs is a slippery slope to oligarchy or worse. We are truly a nation of laws. They are what distinguish us. If you believe that sometimes they should be ignored when they violate your principles, consider what happens when someone who sincerely believes otherwise reaches a position of power. Is that really the precedent you wish to establish?
So, let’s return to Professor Dershowitz. I am sure that his instincts guide him toward believing that due process should apply universally. It is the very essence of fairness. But he is an honest man and he understands the law. So, perhaps reluctantly, he applied it to Trump’s executive order. I suspect he might be a good judge by Gorsuch’s standard. Evidently being a progressive doesn’t always mean that good intentions trump impartial analysis, which pleases me and gives me hope for our future.