Do Outsiders Have Legal Rights?

The ban raises a fundamental moral question that has recurred throughout U.S. history: what rights, if any, do people considered outsiders have?
Adam Hosein
March 15, 2017
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On Wednesday night, President Trump’s revised executive order on immigration was temporarily halted by federal judge Derrick Watson in Honolulu, only hours before the order was meant to take effect. It would have prevented nationals of six Muslim-majority countries from entering the United States. Trump’s original executive order created a sweeping ban that restricted the movement even of people with important existing ties to the United States—ties that would seem to give them a strong entitlement to be here. Permanent residents (green card holders) and people with existing work visas from the targeted countries were all suddenly denied entry. This made for a relatively easy case that the ban was unconstitutional, since it excluded people who essentially have a promise from the government that they can travel to and live in the United States. This straightforward argument can no longer be made: permanent residents and people with visas that were valid as of January 27 are exempt from the revised ban. As a result a more complicated legal battle may ensue, should other federal judges not concur with Judge Watson's appraisal of the order as obviously unconstitutional. While we remain in suspense about how courts will proceed in the coming days, we can ask how they should rule—in particular, the question of whether constitutional rights should be extended to the people affected by the ban. Does the United States have an ethical obligation to protect such people from arbitrary and discriminatory treatment when they attempt to immigrate to the United States? It is a question not only of what, if anything, the United States owes to immigrants, but also of what kind of country the United States wishes to be.

The ban raises a fundamental moral question that has recurred throughout U.S. history: what rights, if any, do people considered outsiders have? Outsider status has been associated with at least three groups of people. First, there are people who lack citizenship or some other kind of formal legal status, such as permanent residence. Second, there are those who fall outside of the majority’s conception of itself as a nation, for reasons varying from racial and ethnic to cultural and political. And third, there are those who are considered outsiders by virtue of their location outside of the territorial boundaries of the United States (boundaries that have also been conceived differently over time, as seen, for instance, in the varying treatment of Puerto Rico and its occupants).

The targets of Trump’s revised order are outsiders in all of these senses. They are not citizens, nor are they permanent residents or people with preexisting legal entitlement to be in the United States. They are considered (by many) to be outside of the national community, whether because of their race, national origin, religion, or culture. And they live outside of the territorial borders of the United States, seeking to gain entry.

Do these people have rights against the United States government, including rights against arbitrary treatment and discrimination in immigration policy? Defenders of the ban say no, adding that insiders have the right to advance their interests as a group however they see fit. To assert the rights of outsiders is to put unacceptable limits on the sovereign nation to act on behalf of its people.

What can be said to counter this line of thought, to defend the rights of putative outsiders? At the most abstract, it is important to emphasize the core “self-evident” “truths” of the Declaration of Independence: that all people—regardless of citizenship, ethnicity, religion, or location—are born equal and with an entitlement to liberty. Hopefully this much can still secure fairly wide agreement. But what exactly do these abstractions demand in policy terms? When and how does the freedom and equality of the outsider constrain the government and the majority?

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Let us begin by considering people who have been denied rights because they lack the formal status of citizenship. A modern audience might think immediately of immigrants, but history reminds us of other important examples, especially African Americans and Native Americans. The Supreme Court’s 1857 Dred Scott v. Sandford decision ruled that people of African descent could not be citizens of the United States and therefore did not qualify for the constitutional protections afforded to U.S. citizens. Thus was slavery made consistent with the Constitution, at least for a time. As a direct repudiation of the Dred Scott decision, the Reconstruction Amendments emphasized rights held independently of any formal citizenship status. For example, the Fourteenth Amendment dictates that no “State [shall] 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” (my emphasis). Thus the clause puts limits on how anyone can be treated by the government when it exercises power over them and it recognizes that these exercises of power must be constrained whether or not someone is a citizen.

We also have clear examples of rights being denied to people on grounds of their ethnicity. Take, for example, the internment of Japanese Americans during World War II. The Supreme Court in Korematsu v. United States (1944) accepted the government’s argument that internment was necessary because of potential disloyalty on the part of Japanese Americans, deemed separate from the national community even though 70,000 of the 120,000 people sent to camps were U.S. citizens. But the Supreme Court has never subsequently referred to Korematsu as a correct decision. There was no disloyalty among Japanese Americans to match the government’s claims, and certainly not enough, we now recognize, to validate the heavy restrictions on freedom. President Reagan approved damages to be awarded to those affected by the internments and President Clinton awarded the Presidential Medal of Freedom to Fred Korematsu, the plaintiff who challenged them in court. Here too the conclusion is that the exercise of government power over people is morally constrained, including, as in this case, power exercised over people deemed to be non-nationals.

When we recognize the moral progress of the Reconstruction Amendments and the moral failing of Japanese American internment, we are pointed toward a broad principle, familiar from the social contract tradition in philosophy. When the government exercises power over someone, it takes control of their life to some degree, abridging their freedom. The examples show that this exercise of control requires justification, even when those controlled are considered civic or national outsiders. The more significant the exercise of control, the more significant the justification required.

This same reasoning suggests that people deemed outsiders in our third sense—those who live outside of the territorial bounds of the United States—can also claim rights against the government. They too can demand justification when the government exercises power over them. Take, for instance, detainees at Guantanamo Bay, including those who have never set foot in the United States. Do they have any rights against the government? Detention, especially indefinite detention, is plainly an exercise of power over them, wherever it takes place. It ought, therefore, to require a strong justification. The Supreme Court majority in Boumediene v. Bush (2008) pointed out as much, recognizing the “freedom from unlawful restraint as a fundamental precept of liberty,” regardless of where it occurs: “Even when the United States acts outside its borders, its powers are not ‘absolute and unlimited’ but are subject ‘to such restrictions as are expressed in the Constitution.’”

We can apply the legal sentiment expressed in this ruling to the case of immigration. Anyone who witnessed the events immediately following the January 27 executive order knows that immigration restrictions involve an exercise of power. Some people were prevented by officials from taking their flights from, say, Cairo to New York, while many others were detained upon arrival at U.S. airports. These people’s movement was restricted with the backing of government force. As the influential immigration theorist Joseph Carens put it, “Borders have guards and the guards have guns.” He might have also added that they have detention rooms and the rooms have locks.

Preventing someone from entering the country is not an overwhelming exercise of control over them on the order of, say, imprisoning them indefinitely (assuming—though this cannot be taken for granted now—that detention at the border is only temporary). Nor is someone who is prevented from entering the territory made a subject of the U.S. government in the same way as those who actually live in the country: the former is told, “Act as you will, but you may not do so here,” while the latter are told that they must obey the totality of the laws of the United States on pain of punishment. But exclusion from the territory is still an exercise of power and it thus still requires some justification. And in this case it seems that the government lacks even the most minimal justification. Despite the administration’s claims to be protecting American lives, New America found that every killing on U.S. soil by a jihadist terrorist since 9/11 was perpetrated by an American citizen or permanent resident, and in no case by someone with ties to one of the countries singled out by Trump’s executive order. Leaked intelligence documents from the Department of Homeland Security likewise find no basis in national security for restricting the travel of people from the six targeted countries.

• • •

So far I have focused on how respect for the freedom of all people—one of the core directives of the Declaration of Independence—can constrain the treatment of people deemed to be outsiders. What about respect for their equality? Here too the past can help guide us. The moral and legal history of the United States suggests that not only do exercises of government power require justification, but also that laws with certain kinds of justification are categorically ruled out. Laws based, for example, on racial prejudice, unfounded stereotypes about what women are capable of, or irrational discomfort with the presence of mentally ill people have all been found morally and legally unacceptable. What these laws have in common is that they involve failing to appreciate the moral equality of people in the relevant groups: that other races and genders are not lower entities to be hated and that the mentally ill are fit to live alongside all others.

Why exactly are such inegalitarian laws problematic? One plausible approach says that it is inherently oppressive for the government to exercise power over a group on grounds that cannot be squared with understanding members of that group as equals. A second, complementary approach focuses on what these laws express to members of the disfavored group. For instance, segregation in schools—premised on the unworthiness of black students to be educated with white students—was morally odious in part because it created in black students, per the 1954 Brown v. Board of Education ruling, “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Trump’s executive order also has a categorically unacceptable basis, grounded as it is in irrationally broad fear of Muslims. Alive to this criticism, Trump and his advocates no longer openly refer to his restrictions, as they did on the campaign trail, as a Muslim ban. His defenders emphasize that it instead targets people specifically on the basis on their country of origin, and that immigration law has always made distinctions based on nationality for the purposes of protecting security. Moreover, they say, can’t the president change his mind? What if, since gaining office, he has accepted that the 1.6 billion Muslims in the world are not all to be feared and instead found that there are real risks based on the political situation in certain regions of the world?

These arguments are unconvincing: we have been here before. Japanese American concentration camps were also purported to serve security interests. Those unfounded claims covered for the real basis of the law: to satisfy white rage in the wake of the Battle of Pearl Harbor and thereby shore up political support for President Franklin D. Roosevelt. The new executive order has a similarly flimsy official purpose of protecting security, and has an equally plain function of appeasing elements of Trump’s political base who equate being from the Islamic world with being essentially inclined toward acts of terrorism.

Such a law is inherently oppressive, even when its targets are overseas. It still involves an exercise of power on grounds that cannot be squared with their equality as people. And it is also problematic because of its message. The United States is deeply involved with the governments and people of the Islamic world. It frequently asks for their cooperation on intelligence, for the right to fly and activate deadly drones in their airspace, for access to their natural resources, and so on. Those concerned with realpolitik argue that, given this substantial political involvement in the Islamic world, the United States would be unwise to alienate large portions of its population, sapping their willingness to cooperate. What I contend is that, in addition to being counterproductive, there is a more basic moral problem with treating people in this way. If the United States is to exercise power in the Islamic world and make demands of its members, then it ought to do so on the basis of some minimal respect and equality of footing. The message of the narrower travel ban is still that people from the Islamic world are inherently suspect, unfit to even be considered for entry into the United States. Yet these same people must continue to deal with the United States: its might and its demands. It is as morally repugnant to create a global political order of superiors and inferiors, of lords and vassals, as it is create a domestic political order of racial castes.

Immigration law is often said to be exceptional, an area where executive discretion should be freed from ordinary constitutional constraints. The specific arguments vary, but they share some basic vision that immigrants are outsiders—whether civic, national, geographical, or all three—and therefore lack rights against the government. It is a vision that cannot sustain moral scrutiny. Wherever they come from, immigrants are still people, born free and equal. This means that they do have rights—including rights against arbitrary treatment and discrimination—and those rights remain violated by the revised executive order.

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March 18, 2017