Recently during a Twitter discussion about the Muslim ban EO, I was asked what precedent a judge has to block the EO that affects non-citizens & why the US Constitution applies to non-citizens & if it does, why doesn't it apply to everyone in the world? The inquiry was a genuine one, not a troll, so I'm more than happy to answer! In fact, I'm such a nerd, I enjoy getting to explain this stuff. Woohoo, nerd!
Okay, anyway, I'm assuming everyone knows that DT signed an EO preventing non-citizens, including immigrants & refugees (not the same thing, btw), from seven countries from entering the U.S. Unless you listen to only the "alternative facts" provided by the DT administration, you probably know this order was unexpected, causing many people to be detained at the airport when trying to enter and generally causing a clusterfuck at airports all over the county. Lastly, I'm assuming everyone has heard that a federal judge blocked the EO, essentially returning everything back to the way it was before the EO was signed.
Brace yourself...this is going to be a meaty discussion. There are a LOT of things that lead up to the court having the ability to block the EO, so we will have to cover them all.
First things first: how/why can a court block this or any EO?
Going way back to your civics class, you maybe learned about a case called Marbury v Madison. The facts of the case don't matter too much for this topic. What is important is that this case formally established the Court's power of judicial review. Judicial review is the Court's part in the whole checks & balances thing. Essentially, what it does is it allows the courts to review law & if it violates the constitution, the courts get to strike it down & it cannot be law anymore. That's important, because if the other branches of government can create laws or orders that violate the constitution, then the constitution becomes meaningless. So, the courts have the power of judicial review, which allows them to strike down laws/orders that are unconstitutional.
Next part of this whole thing: what exactly did the judge do?
The judge issued a temporary restraining order, prohibiting the enforcement of the EO until a more thorough hearing on the merits of the underlying claim can be heard. Essentially, what that means is that there are ongoing, pending lawsuits about whether the EO is in violation of the constitution or not, but the parties who are suing the federal government asked for an emergency order until they can get into court to argue the constitutional stuff. The court process can take a long time, so it's not uncommon to have these emergency orders available to prevent harm from happening while waiting for your court date. The hearings for these types of emergency orders are usually not as involved as the full hearing on the ultimate issue. The party requesting it just has to show it's likely that they'll win at the full hearing & that they will be irreparably harmed if the court doesn't grant the restraining order. Basically, these types of temporary restraining orders put the law on hold until it can be determined if it's constitutional or not.
So, the judge didn't actually strike down the EO. Rather, he simply said that enforcement of the EO should be put on hold until the litigation about whether it's constitutional or not is done. The judge DID find that it was likely that the plaintiffs (the states that are suing the federal government) will win in their suits, but he didn't actually decide that they HAVE won just yet.
The judge mentioned the court's role as a check on the other branches of government in his order, discussing how the court's role is to ensure the constitution is upheld. So he relied on the court's power of judicial review to issue the temporary restraining order.
Now, onto the specific questions re: the constitution applying to non-citizens.
First, the lawsuits & the request for a temporary restraining order was actually brought by a number of states, not individual non-citizens, so technically the court reviews the harm the EO causes to the states. Since the states are part of the US, they don't have to get into whether constitutional protections apply to non-citizens or not. The states argued that the EO ban affected the states' interest in a number of areas, like tax bases (fewer people in the states = less of a tax base), etc. You can read the order here if you want.
But, that doesn't answer the question about why do constitutional protections apply to non-citizens & if they do, why don't they apply to everyone all over the world? So let's turn to that.
Throughout the nation's history, there have been a number of Supreme Court cases that have specifically held that non-citizens are entitled to the protections found in the constitution. This article gives a nice breakdown on the cases.
The basic reasons that non-citizens get those protections is the wording of the constitution. In the Bill of Rights, we see the following language:
"...the right of the people..."
"No person shall be held to answer..."
"...nor shall any person be subject for the same offence..."
"...the accused shall enjoy the right to a speedy and public trial..."
Note that it never says "citizen." In fact, in the entire Bill of Rights, there is nothing mentioned about limiting the protections to citizens only.
Now, when you get to the 14th Amendment, you see this:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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."
So we have a description of what makes someone a citizen and a prohibition on the states making laws that abridge the privileges & immunities of its citizens. But then, it goes on to say that the government can't do things that deprive any person of the right to due process & equal protection.
Which means, if you are within the jurisdiction of the United States, you are entitled to constitutional protections. They are not specifically limited to citizens only. There are some rights that are for citizens only, such as the right to vote or hold public office. But the protections apply to everyone within the jurisdiction of the United States.
It also doesn't matter if you are here legally or illegally. You get the same protections as citizens. Including the right to due process, which appears to be seriously lacking in the enforcement of the EO (more on that in a moment).
The reason those protections don't apply to everyone in the world boils down to jurisdiction. The US only has jurisdiction, or power/authority, over certain places. Anything considered to be US land or territory is arguably subject to its jurisdiction. So if you are in the physical borders of the United States, you are within its jurisdiction. That means you are subject to its laws & conversely, subject to its protections. It gets a bit more murky when looking at US jurisdiction outside of the physical borders of the nation, such as when dealing with places like Guantanamo Bay. The Supreme Court has ruled that at least some of the constitutional protections apply to places that are US-controlled like that, even though it isn't within the physical borders of the country. But it definitely gets less clear-cut on that front.
However, the main thing the courts look at in those situations is whether that out-of-country location is a place that is considered to be under the jurisdiction of the United States. If it's not, then the constitution doesn't apply. The laws of that government apply. Our constitutional protections apply only to people under our jurisdiction.
Now, let's talk briefly about due process, since that's a major issue in the overall argument against the EO. Due process means that if the government is going to take something from you, you have the right to challenge it and that if the government is permitted to take something from you, the taking needs to be done fairly. That's kind of an obtuse description, so it's easier to explain through examples.
In the criminal court realm, due process typically means "fairness." The right to an attorney to assist you so you aren't going up against the government on your own. The right to a public trial. The right to have a fair trial. Those things go to due process. If the government is going to take away your freedom by putting you in jail or prison, the process by which they do that must be fair.
But due process also applies to other areas of the law that aren't criminal law. For example, if the government wants to take your driver's license away, you have the right to a request a hearing to challenge that. The government can't just take it from you w/o providing you an opportunity to fight it.
This applies to a number of areas. Basically if the government wants to take something, be it your liberty, your property, your benefits, or your rights, they have to provide you with an opportunity to challenge it. They don't get to just snatch it away.
Due process applies even to benefits that the government has given to people, such as government assistance or, in the case of the EO, visas/ability to legally enter the country. In sum, no take-backsies just bc you changed your mind, Government. Once you give it, you can't take it back without due process.
Of course, that doesn't mean the government can never take back benefits its provided. Just that they can't do it w/o due process, where the affected people can challenge it.
Aaaand that's where the problem with the EO comes in. Or at least one of the problems. People had been given visas or other status that allowed them to legally enter & exit the United States. Many people have residences established here, jobs, rent, car payments, family, pets, school, etc. They left the country with the understanding that they were legally allowed to return. Then, for many people while they were in flight, the government suddenly & without notice took that away. They were no longer allowed to enter the country. They had not had any opportunity to challenge this & were suddenly blocked from returning to their lives here in the United States.
That's why the temporary restraining order makes sense. The people affected by the EO that have homes, families, obligations, work, school, pets, mortgages, etc. that were prohibited from re-entering the country were going to be irreparably harmed if the EO were enforced before they had an opportunity to challenge it. Even if they ultimately won the challenge, they may have lost their jobs, been evicted, had their pets die, have their car repossessed, missed too much school, etc. The judge's restraining order puts the EO on hold, which allows the affected people to have due process. And that's so important to our nation's system of government that when the 14th Amendment was written, it was written to provide due process to ALL people subject to the jurisdiction of the United States, not just its citizens.
Okay. Dense enough for you? Good! Then that's it for today.
