Lawyers from the Justice Department have filed an appeal to lift the stop order on the executive order banning entry into the United States from those holding passports from seven Muslim-majority countries for three months, refugees in general for four months, and refugees from Syria indefinitely. The main argument is that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” There are three questions:
1) Do legal residents who are citizens of the seven countries named in the ban have constitutional rights?
2) Do illegal aliens have constitutional rights?
3) Do refugees have constitutional rights?
The 14th Amendment states that “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.” For legal residents, the amendment means that being denied re-entry if they were abroad when the executive order was signed is unconstitutional because the travel ban would deprive them of their property without due process of law. These are people who have created a life in the United States; it is where their homes and their livelihoods are. To prevent them from returning would render them homeless and possibly penniless. For illegal aliens, the amendment affords them, by virtue of their residence within the borders of the country, equal protection of the law, including constitutional rights. This is because the amendment states “any person within its jurisdiction”, not “citizens of the United States.”
For refugees, however, they are not citizens, legal residents, nor illegal aliens who are already living in the United States. So does the 14th Amendment, or any amendment in the Constitution for that matter, protect refugees from the executive order enacting the travel ban? Until a refugee has gotten past immigration at an airport or border crossing, they are not within the jurisdiction of the United States. It is actually the 1st Amendment that gives the refugees constitutional rights. The executive order suspended admission of all refugees but ordered the Secretary of Homeland Security “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” While the order does not explicitly ban Muslims, by naming Muslim-majority counties in the ban, then carving out preferential treatment for refugees who are a minority religion from those countries, the executive order established a preference of one or more religions over another. The 1st Amendment states, in part, that “Congress shall make no law respecting an establishment of religion.” While the the executive order was not created by the Congress, nor does it establish a religion per se, the amendment has been interpreted to mean that it is unlawful to discriminate against any religion, which is what the travel ban did. Furthermore, immigration law states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”.
In summary, a broad range of people are protected by the Constitution, including those who are not citizens or may not even be in the United States yet. That is the beauty and wisdom that was established as fundamental law during the development of our country. For a single man to try to wipe that away with a stroke of his pen is deeply disturbing.