Eleanor Finch
The US Constitution guarantees certain rights to all persons or people within the country, regardless of citizenship. This includes the right to due process, equal protection under the law, freedom of speech, and freedom of religion. The Supreme Court has also ruled that undocumented immigrant children have the right to a free, public education. The US President has the sovereign right to exclude foreigners from entry, and Congress has the power to make rules for their admission. However, the President's immigration power is not absolute, especially regarding individuals already physically present in the US. The Trump administration's strict immigration policies, including a supposed ban on Muslims, have raised questions about constitutionality, separation of powers, and religious freedom.
| Characteristics | Values |
|---|---|
| Immigration ban within rights of the US Constitution | The US Supreme Court has upheld laws excluding aliens from entry on the basis of ethnicity, gender, legitimacy, and political belief. |
| Immigration ban not within rights of the US Constitution | The US Supreme Court has extended constitutional protections to all aliens within the US, including those who entered unlawfully, and has ruled that aliens may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. |
| Immigration ban within rights of the US President | The US President has the right to impose an immigration ban based on national security and public safety concerns. |
| Immigration ban not within rights of the US President | The US President's immigration ban may be unconstitutional if it is based on religious animus or violates the right to "family integrity." |
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What You'll Learn
The US Constitution and immigration laws
The US Constitution grants Congress the power to make laws regarding immigration. The Migration and Importation Clause, for instance, barred Congress from outlawing the slave trade before 1808. The Constitution also grants Congress the power to declare war, which has been mentioned in discussions of congressional immigration power.
However, the Supreme Court has also ruled that aliens physically present in the United States, regardless of their legal status, are guaranteed due process of law by the Fifth and Fourteenth Amendments. This means that even those who are in the country unlawfully or temporarily are entitled to constitutional protection. The Court has extended these constitutional protections to all aliens within the United States, including those who entered unlawfully.
The Trump Administration's strict immigration policy, which created a terrorist risk list of Muslim nations, has been a recent topic of discussion regarding the US Constitution and immigration laws. The Supreme Court explored whether the administration's policy amounted to a flat ban on Muslims coming to America and whether the Court had the power to rule on the legality of the President's order. The religion issue raises constitutional questions, and the public statements made by Trump suggesting that he wanted a ban on Muslims have also been considered in the Court's review.
In summary, the US Constitution grants Congress the power to make laws regarding immigration, and the Supreme Court has upheld this power while also extending due process protections to aliens present in the country. The Trump Administration's strict immigration policy has raised questions about the constitutionality of such bans, and the Supreme Court has explored whether it has the power to rule on the legality of the President's order.
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Rights of undocumented immigrants
The US Constitution does not permit foreigners to enter the country without going through the proper channels, but it does protect their human rights once they are physically present in the country. The Supreme Court has extended constitutional protections to all aliens within the United States, including those who entered unlawfully.
The Fifth Amendment states that "No person shall be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment also uses the Due Process Clause, which guarantees due process to all 'persons' within the United States, including aliens, regardless of their legal status. This includes the right to a fair and impartial hearing, the right to be informed of the charges against them, the right to an attorney, and the right to present evidence in their defence.
The Sixth Amendment guarantees the right to legal counsel in all criminal prosecutions. If an undocumented immigrant faces deportation, they have the right to legal representation. The government must provide them with an attorney if they cannot afford one.
Undocumented immigrants also have the right to remain silent and do not have to discuss their immigration or citizenship status with police, immigration agents, or other officials. They do not have to let police or immigration agents into their home unless the agents have certain kinds of warrants. If an immigration agent asks if they can search them, they have the right to say no. Agents do not have the right to search them or their belongings without their consent or probable cause.
The right to live with one's family is also recognised as a fundamental human right by multiple international treaties and declarations.
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Immigration powers of Congress
The Supreme Court has generally assigned the constitutional power to regulate immigration to Congress, giving it almost complete authority to decide whether foreign nationals (or 'aliens', under governing statutes and case law) may enter or remain in the US. This is known as the plenary power doctrine.
In exercising its power over immigration, Congress can make laws concerning aliens that would be unconstitutional if applied to citizens. For example, the Supreme Court has upheld laws excluding aliens from entry on the basis of ethnicity, gender and legitimacy, and political belief.
The plenary power doctrine has been criticised for allowing the Executive Branch to enjoy expansive power over immigration. For example, President Obama was criticised for his "national security" rationale for holding Central American refugees in detention camps, and for deferring the deportations of young people who had graduated from US high schools.
The Supreme Court has also allowed Congress to delegate its immigration authority to the Executive Branch. For example, Congress has delegated the power to the Executive Branch to determine whether the US is at war, such that military members can be naturalised.
The Constitution only mentions immigration once, stating that Congress has no power to limit the migration of slaves until 1808. It does, however, give Congress the power to create a uniform rule of naturalisation.
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Immigration exclusion and ethnicity, gender, legitimacy, and political belief
The US Constitution has historically upheld the exclusion of immigrants on the basis of ethnicity, gender, legitimacy, and political belief.
Ethnicity
The Immigration Act of 1924, also known as the Johnson-Reed Act, restricted the number of immigrants allowed entry into the US through a national origins quota. This quota provided immigration visas to two percent of the total number of people of each nationality residing in the US as of the 1890 national census. The Act completely excluded immigrants from Asia, except for Japanese and Filipino immigrants. This exclusion was based on a "gentlemen's agreement" that the Japanese government had made in 1907 to voluntarily limit Japanese immigration to the US. The Chinese were already denied immigration visas under the Chinese Exclusion Act, which exempted Chinese merchants and their wives from exclusion.
Gender
Citizenship revocation, or denationalization, has historically been used to exclude individuals on the basis of gender. While citizenship is no longer revoked from women after marriage, studies have shown that gender continues to play a role in immigration exclusion. For example, the intersection of race and gender can create openings for policy exemptions from exclusion, with high-class status superseding race-based exclusion and facilitating the admission of wealthy and well-educated non-white immigrants.
Legitimacy
The US court has upheld laws excluding individuals linked by an illegitimate child-to-natural father relationship from eligibility for certain immigration preferences.
Political Belief
The US court has suggested that laws rendering communists ineligible for visas do not exceed Congress's immigration powers. Additionally, the court has upheld an Executive Branch exclusion policy that was motivated by religious animus, indicating that religious beliefs can also play a role in immigration exclusion.
While the US Constitution grants the government the power to exclude immigrants on various grounds, the ethics of immigration exclusion are complex. Some scholars argue that social justice requires both inclusion and exclusion, and that a holistic view of global ethics should be considered when determining immigration policies.
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Religious freedom and immigration
The United States has long recognised the admission and exclusion of foreign nationals as a "fundamental sovereign attribute exercised by the Government’s political departments". The power to admit or exclude aliens is a sovereign prerogative, and the formulation of policies concerning the entry of aliens and their right to remain is entrusted exclusively to Congress.
However, the Supreme Court has also extended constitutional protections to all aliens within the United States, including those who entered unlawfully. Once an alien is physically present in the United States, they are guaranteed due process of law by the Fifth and Fourteenth Amendments, regardless of their legal status.
The question of whether immigration bans are within the rights of the Constitution has been a subject of debate, particularly in relation to religious freedom. The Trump Administration's strict immigration policy, which created a terrorist risk list of predominantly Muslim nations, has been challenged on religious grounds. Challengers' lawyers have argued that the policy amounts to a ban on Muslims, violating religious freedom. The Supreme Court has explored whether the flexibility of the policy, including waivers and the removal of nations from the list, proves that it is not a flat ban.
Immigration has been described as a "theologizing experience," with immigrants turning to religion for support and mutual assistance during the challenges of resettlement. Studies have shown that immigration can disrupt religious practice, with immigrants being less likely to attend religious services or identify with a particular faith. However, religion has also been seen as a critical step in the process of assimilation, providing a social structure that facilitates intermarriage and integration within the broader society.
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Frequently asked questions
The US Constitution does not explicitly mention a right to immigration, but the Supreme Court has upheld laws excluding aliens from entry on the basis of ethnicity, gender, legitimacy, and political belief. The Court has also recognized the admission and exclusion of foreign nationals as a "fundamental sovereign attribute".
Immigrants have certain rights under the US Constitution, including due process, equal protection under the law, freedom of religion and speech, and the right to remain silent. They also have the right to contact their consulate if detained, to refuse to be searched without consent or probable cause, and to a private phone call within a reasonable time of their arrest.
The President has the power to implement an immigration ban, as seen in the Trump Administration's strict immigration policy. However, the Supreme Court explored whether the President's order, which applied to about 150 million Muslims, violated the constitutional separation of powers. The Court also considered the religious implications of the ban.
