“In the Garcia case and the deportations of [alleged] Venezuelan gang members: How can there be a constitutional violation? They are not citizens, so they should not be protected by the Constitution.”
— Chet Monroe
Hi Chet,
Constitutional protections aren’t limited to citizens or even to people who are here legally.
That doesn’t mean noncitizens have the same rights as citizens in all circumstances. For example, this Brennan Center analysis noted that it’s against the law for noncitizens to vote in federal and state elections. But to highlight a recent high-profile example, noncitizens have due process rights.
To help understand how, let’s start with the text of the Constitution. The Fifth and 14th Amendments grant due process rights not only to the narrower category of “citizens” but to the broader category of “person[s].”
Indeed, the courts wouldn’t be going through all this litigation if noncitizens had no rights. The Supreme Court’s recent orders on the Alien Enemies Act and Kilmar Abrego Garcia’s case take due process as a given.
To be clear, it’s not only the Democratic-appointed justices who have stressed these rights, although they have voted to enforce them more strictly than have their Republican-appointed colleagues. As Trump appointee Brett Kavanaugh put it earlier this month: “all nine Members of the Court agree that judicial review is available.” Likewise, Reagan-appointed appellate Judge J. Harvie Wilkinson III wrote last week: “The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process.” Of course, there’s having a right on paper and then there’s the reality of what happens in practice; rights aren’t worth much without a remedy for their violation. With that said, the extent to which the Supreme Court majority will enforce the law in these cases remains to be seen. But, again, as a general matter, just because someone isn’t a citizen doesn’t mean they lack rights, even if their rights don’t always line up with citizens’ rights in every way. Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal Blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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