Wednesday, April 6, 2016

Guest blogger: Frank Gould, first-year law student, University of San Francisco

Most people who vehemently oppose immigration fancy themselves as knowledgeable of the constitution. They see no problem with plenary power, it doesn’t matter if it circumvents the constitutional rights of the non-citizen. For such people, the non-citizen has no constitutional rights because they are not a citizen. Regardless of how gross the violation of rights, the point is moot because the rights are simply non-applicable. Going back and forth on whether the constitution applies to immigrants usually results in a quagmire, where the parties are entrenched in their long held beliefs.

However, there may be an alternative and more persuasive way to combat those who support draconian immigration laws. Focus on how the rights of American citizens suffer as a result of such legislation/policy and the history of anti-immigration legislation/policy infringing on the rights of American citizens.

The case of Arizona v. United States is a prime example. While most of SB 1070 was struck down, the case is illustrative of how in an effort to exclude one group of people the proponents could be hurting themselves. The legislation at issue in Arizona was expansive in granting powers to the local authorities. Under Section 6 one can be arrested if an officer has probable cause that one is an undocumented immigrant. Discretion is left up to the local authorities, meaning one could be arrested for “looking like an illegal” even if one is actually a citizen. The same person arrested can be held pending status determination. This means that a citizen, subject to broad probable cause, based on appearance or race (violations of the 4th and 14th Amendments) could be stopped, arrested and detained until their status is determined, without a warrant.

The case of Kliendeinst v Mandell (92 S. Ct. 2576 (1972)) and American Academy of Religion v. Chertoff (463 F. Supp. 2d 400 (2006) show how immigration laws and policy can be used to suppress the free flow of ideas. Both of the non-citizens in question were academics whose expertise was in the beliefs of the “enemy” of their time period. In Mandell the forbidden belief was Marxism, and the non-citizen was denied entry right around the time the Vietnam War was wrapping up. Just a refresher--that war did not go well for the United States. In Chertoff it was the teachings of Islam that were at issue; the visa was denied a few years after 9/11. Both parties were denied their visas; thus they were not permitted to enter the United States. While it was possible to communicate in ways other than face to face, the people (American citizens) who had invited these guests, were denied an expression of their free speech as they were not free to associate or express their opinions.

Pointing out that anti-immigration policies hurt United States citizen’s rights is not a new legal argument. Where this issue needs to be brought up is in discussion between United States citizens. One must not ignore or omit the plight of non-citizens trying to enter the country; this has a place in all discussions regarding immigration. However, this road is well worn and if it is the only road taken it leads us to a familiar place--both sides dug in refusing to give an inch. By steering the discussion toward the rights of the citizens affected, some will be forced to look inward. The picture is painted in a new light; one may see the victims no longer as a faceless mass, with which one has no connection. Instead they may see themselves affected by the injustice of such policies and become outraged and indignant. This outrage will not turn to empathy in all or even most. However, it will engender empathy in some, which is a step in the right direction.

bh

https://lawprofessors.typepad.com/immigration/2016/04/another-approach-to-discussing-anti-immigration-legislation-and-policy.html