Men in Black (13 page)
Authors: Mark R. Levin
In rejecting the established principle that states have a right and a responsibility to husband their limited resources for their citizens and long-standing legal residents, Justice Harry Blackmun wrote:
We agree with the three-judge court in the Pennsylvania case that the justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens. Aliens like citizens pay taxes and may be called into the armed forces…aliens may live within a state for many years, work in the state and contribute to the economic growth of the state…. There can be no “special public interest” in tax revenues to which aliens have contributed on an equal basis with the residents of the state…. Accordingly, we hold that a state statute that denies welfare benefits to resident aliens and one that denies them to aliens who have not resided in the United States for a specified number of years violate the Equal Protection Clause.
36
Blackmun also invoked a test for courts to use to decide whether a citizenship requirement for benefits from a state or federal agency is permissible. “The Court’s decisions have established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”
37
In other words, lawmakers could only use noncitizenship if they could demonstrate a compelling government interest in doing so—a hurdle that would be nearly impossible to overcome.
The real question the Court should have addressed—and the one that would have profound constitutional implications—is: Who gets to determine whether aliens are eligible for certain benefits? Who sets policy? Clearly, if there is a desire to create a national standard for the eligibility of federal programs, Congress should make that decision. If the program is exclusive to a particular state, the relevant state government should make that decision. The Court simply abrogated the explicit and inherent authority of those elected legislative bodies and imposed its own preference.
The Court also found that the Civil Rights Act of 1866, which guaranteed equal rights to every citizen in every state, included a protected right to travel among the states.
38
The Court ruled that creating residency requirements for aliens would inhibit their right to travel. Again, the Court simply created a new constitutional right—the right to travel—and then extended that “right” to aliens.
In 1976, the Supreme Court ruled in the case
Hampton v. Mow Sun Wong
that citizenship was an unconstitutional requisite to holding a government job.
39
In 1970, five resident alien civil service employees were dismissed from their jobs in the Post Office,
40
the Health, Education, and Welfare Department,
41
and other federal agencies because it was discovered that they were not U.S. citizens as required by Civil Service Commission regulations. The five sued the commission in federal court.
The Supreme Court ruled unanimously that the citizenship requirement violated the due process and equal protection clauses and legal aliens’ right to liberty. Justice John Paul Stevens wrote:
The rule enforced by the Commission has its impact on an identifiable class of persons who, entirely apart from the rule itself, are already subject to disadvantages not shared by the remainder of the community. Aliens are not entitled to vote and, as alleged in the complaint, are often handicapped by a lack of familiarity with our language and customs. The added disadvantage resulting from the enforcement of the rule—ineligibility for employment in a major sector of the economy—is of sufficient significance to be characterized as a deprivation of an interest in liberty…. By reason of the Fifth Amendment, such a deprivation must be accompanied by due process…It follows that some judicial scrutiny of the deprivation is mandated by the Constitution.
42
The unanimous vote of the Court notwithstanding, the reasoning behind the
Hampton
decision is another example of the Court reaching into an area the Constitution reserves for Congress—and that Congress in successive immigration and naturalization acts delegated to the executive branch. The legislative history cited—yet ignored—by Stevens in the
Hampton
decision even demonstrated that it was the intention of Congress that civil service jobs be reserved for U.S. citizens or, at least, to aliens who had pledged permanent allegiance to the country.
43
The Court had to manufacture the premise that denying resident aliens a civil service job somehow infringed on their liberty to obtain a job at all, and that there was no valid reason for ensuring that government jobs go primarily to U.S. citizens.
In 1973, in
Sugarman v. Dougall
, New York’s civil service law included the requirement that all state civil servants be U.S. citizens.
44
Four low-level state employees, who were resident aliens, were dismissed from their positions once their citizenship status became known.
45
They then sued the state, claiming that the statute violated their Fourteenth Amendment due process rights.
46
In an 8–1 decision (only Justice William Rehnquist dissented) the Supreme Court built on the
Graham
decision and continued to reverse the position it took in the 1915 cases that states have the right to distinguish between citizens and noncitizens in their public expenditures. In
Sugarman
, the Court found that while states could indeed differentiate between citizens and noncitizens in certain types of jobs, those jobs had to be very narrowly defined and limited specifically to the functions of the government—such as law enforcement and senior policymaking positions. Citizenship was not a material requirement for other civil service positions, so requiring it for those positions violated an immigrant’s Fourteenth Amendment rights.
47
Rehnquist, however, offered a brilliant response in his solitary dissent:
The Court, by holding…that a citizen-alien classification is “suspect” in the eyes of our Constitution, fails to mention, let alone rationalize, the fact that the Constitution itself recognizes a basic difference between citizens and aliens. That distinction is constitutionally important in no less than 11 instances in a political document noted for its brevity…. Not only do the numerous classifications on the basis of citizenship that are set forth in the Constitution cut against both the analysis used and the results reached by the Court in these cases; the very Amendment which the Court reads to prohibit classifications based on citizenship establishes the very distinction which the Court now condemns as “suspect.”
48
The 1982
Plyler v. Doe
decision is perhaps the most egregious of the Court’s immigration rulings.
49
In the 1960s and 1970s, a rising tide of illegal immigrants crossed the border from Mexico into Texas to take advantage of the better economic climate and quality of life in the United States. By 1975, the financial strain of the influx had started to choke the already crowded school systems in Texas border towns. In response, Texas enacted a new law concerning children not legally admitted to the United States that allowed local school districts to deny their enrollment and withheld from local school districts state funds to educate these children.
50
Numerous lawsuits were brought on behalf of several children challenging the new law, which were consolidated in the case
Plyler v. Doe
. In a 5–4 decision, Justice William Brennan, writing for the majority, went so far as to extend the term “person” in the Fourteenth Amendment to include illegal aliens, by virtue of their physical presence in the United States.
51
Moreover, Brennan found that the children of illegal immigrants weren’t responsible for their illegal entry into the country, therefore, “legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”
52
While the Court recognized that there is no constitutionally enumerated “right” to a free public education, Brennan stated:
[N]either is [a public education] merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. The American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance…. We have recognized the public schools as a most vital civic institution for the preservation of a democratic system of government…. And these historic perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists.
53
But Brennan wasn’t done. When he moved to the question of whether the equal protection clause applied to extending social benefits to illegal aliens, he determined that because Texas had essentially delineated illegal aliens as a distinct “class” of people, they must be treated equally with every other person in the state. Not to do so in this instance—the provision of a free public education—would violate the equal protection clause.
54
In
Plyler
, the Court decided that any conglomeration of people, regardless of the reason for their classification under law, had to be treated identically with every other class of people.
Brennan also said that irrespective of the financial burden imposed on the community or the state by illegal aliens, the cost was not sufficient to justify preventing illegal immigrants from availing themselves of a free public education.
55
Chief Justice Warren Burger, writing the dissenting opinion for himself and Justices Byron White and Rehnquist, summed up the true nature of the Court’s action:
The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of “effective leadership” in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide “effective leadership” simply because the political branches of government fail to do so.
56
The Supreme Court has reached into other areas to find rights for immigrants that the Constitution, Congress, and the executive branch never intended. In 1973, in
In Re Griffiths
, the Court ruled that a state could not deny noncitizens the right to take the bar exam and become licensed, practicing attorneys—again thanks to the hidden meaning the Court found in the equal protection clause.
57
In 1977, in
Nyquist v. Mauclet
, the Court decided by a 5–4 vote that it was unconstitutional for New York to require resident aliens to at least apply for U.S. citizenship before becoming eligible for financial aid for education.
58
The Court, as a practical matter, is in no position to substitute its policy objectives for that of a legislature or Congress. It sits as an adjudicative body, insulated from the kind of give-and-take that occurs between the citizenry and their representatives. It has no responsibility for the kind of balancing act elected officials must undertake in weighing public priorities.
September 11, 2001, underscored that we need greater government scrutiny over our borders and immigration. Congress’s role in drafting and the executive’s authority in enforcing immigration law have never been more important, and the judiciary’s interference with these constitutional roles has never been more dangerous.
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“Terrorism is the preferred weapon of weak and evil men.”
Ronald Reagan, 1986
1
A
fter September 11, 2001, President George W. Bush took several steps to enhance U.S. security both here and abroad. One step was to detain “enemy combatants” who were captured by the U.S. military while fighting for the Taliban and al Qaeda in Afghanistan. The president designated them “illegal combatants” because they are not conventional soldiers: They don’t wear uniforms, they don’t carry weapons in the open, and they often hide among the civilian population.
2
They’re being held at the U.S. naval base in Guantanamo Bay, Cuba.
Alberto R. Gonzales, former counsel to the president, whom President Bush nominated in November 2004 to succeed John Ashcroft as attorney general, explained the Bush administration’s detention policy this way:
Under [the laws of war] captured enemy combatants, whether soldiers or saboteurs, may be detained for the duration of hostilities. They need not be “guilty” of anything; they are detained simply by virtue of their status as enemy combatants in war. This detention is not an act of punishment but one of security and military necessity. It serves the important purpose of preventing enemy combatants from continuing their attacks. Thus, the terminology that many in the press use to describe the situation of these combatants is routinely filled with misplaced concepts. To state repeatedly that detainees are being “held without charge” mistakenly assumes that charges are somehow necessary or appropriate. But nothing in the law of war has ever required a country to charge enemy combatants with crimes, provide them access to counsel, or allow them to challenge their detention in court—and states in prior wars have generally not done so. It is understandable, perhaps, that some people, especially lawyers, should want to afford the many due process protections that we have grown accustomed to in our criminal justice system to the individuals captured in our conflict with al Qaeda. It has been many years, fortunately, since the United States has been in a conflict that spans the globe, where enemy combatants have been captured attempting to attack our homeland. But the fact that we have not had occasion to apply the well-established laws of war does not mean that they should be discarded. The United States must use every tool and weapon—including the advantages presented by the laws of war—to win the war against al Qaeda.
3
Moreover, as William J. Haynes, general counsel of the Department of Defense, has written:
The president has unquestioned authority to detain enemy combatants, including those who are U.S. citizens, during wartime.
Ex Parte Quirin
(1942);
Colepaugh v. Looney
(1956);
In re Territo
(1946)…
Hamdi v. Rumsfeld
(2002). The authority to detain enemy combatants flows primarily from Article II of the Constitution [in which the president is designated the commander in chief]. In the current conflict, the president’s authority is bolstered by Congress’s joint resolution of September 15, 2001, which authorized “the President…to use all necessary and appropriate force” against al Qaeda and against those nations, organizations, or persons he determines “committed or aided in the September 11 attacks.” This congressional action clearly triggers (if any trigger were necessary) the president’s traditional authority to detain enemy combatants as commander in chief.
Presidents (and their delegates) have detained enemy combatants in every major conflict in the Nation’s history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. During World War II, the United States detained hundreds of thousands of POWs in the United States (some of whom were U.S. citizens) without trial or counsel. Then as now, the purposes of detaining enemy combatants during wartime are, among other things, to gather intelligence and to ensure that detainees do not return to assist the enemy.
4
Before these individuals were detained in Guantanamo Bay, they were subjected to a thorough vetting process. As the government explained to the U.S. Supreme Court, “When an individual is captured, commanders in the field, using all available information, make a determination as to whether the individual is an enemy combatant, i.e., whether the individual ‘is part of or supporting forces hostile to the United States or coalition partners, and engaged in an armed conflict against the United States.’ Individuals who are not enemy combatants are released by the military.”
5
After being identified as enemy combatants, “[They] are sent to a centralized holding in the area of operations where a military screening team reviews all available information with respect to the detainees, including information derived from interviews of the detainee. That screening team looks at the circumstances of capture, the threat the individual poses, his intelligence value, and with assistance from other U.S. government officials on the ground, determines whether continued detention is warranted.”
6
After this review, the screening team’s recommendations were examined by a general officer. If he recommended detention at Guantanamo Bay, this decision was again examined by a Defense Department review panel. The overwhelming number of individuals who were initially detained were released. Even fewer wound up in Guantanamo Bay. The government reported that “approximately 10,000 individuals have been screened in Afghanistan and released from U.S. custody.”
7
Once enemy combatants arrived at Guantanamo Bay, they were “subject to an additional assessment by the military commanders regarding the need for their detention.”
8
It included a review “by a team of interrogators, analysts, behavioral scientists, and regional experts, and a further round of review by the commander of the Southern Command.”
9
The commander of Southern Command then sent his recommendations to “an interagency group composed of representatives from the Department of Defense, Department of Justice, and Department of State. This recommendation was then reviewed by the Secretary of Defense or his designee.”
10
Clearly, the process for identifying and detaining an enemy combatant has been thorough and extensive. Moreover, the government has stated that some of these individuals are “direct associates of Osama Bin Laden; al Qaeda operatives with specialized training; bodyguards, recruiters, and intelligence operatives for al Qaeda; and Taliban leaders.”
11
Several enemy combatants filed petitions—called writs of habeas corpus—with federal courts challenging the executive branch’s authority to detain them. These challenges made their way to the Supreme Court. In 2004, two such cases were decided:
Rasul v. Bush
12
and
Hamdi v. Rumsfeld
.
13
They represent egregious examples of judicial activism. In
Hamdi
, the Supreme Court briefly described Yaser Esam Hamdi’s background:
Born as an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a transfer to a brig in Charleston, South Carolina.
14
According to the government, Hamdi was “affiliated with a Taliban military unit and received weapons training.” He “remained with his Taliban unit following the attacks of September 11.” While the Taliban was in conflict with the U.S. military, Hamdi’s unit surrendered. Hamdi was subsequently labeled an enemy combatant:
[The government contends] that Hamdi was labeled an enemy combatant “based upon his interviews and in light of his association with the Taliban.” According to the declaration, a series of “U.S. military screening teams” determined that Hamdi met “the criteria for enemy combatants,” and “a subsequent interview of Hamdi has confirmed that he surrendered and gave his firearm to Northern Alliance forces, which supports his classification as an enemy combatant.”
15
Hamdi’s father, who challenged the detention in federal court, asserted that his son went to Afghanistan to do “relief work,” and because he was in Afghanistan for only two months prior to the September 11 attacks could not have received military training.
16
The Court concluded that Congress had approved the use of military force and had authorized the president to “use all necessary and appropriate force [against] nations, organizations, or persons [that the president determines] planned, authorized, committed, or aided [in the September 11, 2001, al Qaeda terrorist attacks].”
17
In essence, Congress had declared war.
18
The Court also found that members of the Taliban fit the definition of enemy combatants.
19
Therefore, the government was authorized to detain as enemy combatants individuals who were fighting American (and Northern Alliance) forces in Afghanistan.
In addition, the Court ruled that the detention of enemy combatants was not punitive, but was done to prevent their return to the battlefield and for interrogation purposes: “The capture and detention of lawful combatants and the capture, and trial of unlawful combatants by ‘universal agreement and practice,’ are ‘important incidences of war.’ It is now recognized that Captivity is neither a punishment nor an act of vengeance, but merely a temporary detention which is devoid of all penal character…. A prisoner of war is no convict; his imprisonment is a simple war measure.”
20
And how long can the government incarcerate detainees? The Court held it “may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who ‘engaged in armed conflict against the United States.’”
21
Nevertheless, the Supreme Court concluded that Hamdi was entitled not only to challenge the circumstances of his detention before a court, but also to present arguments against his detention. As the Court put it, “We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker.”
22
In his dissent, Justice Clarence Thomas contended that the constitutional authority of the president to wage war and protect the security interests of the American people should take precedence over the perceived authority of the courts. National security and the president’s constitutional authority and duty to wage war for the protection of the United States, Thomas pointed out, are matters over which the courts should have no jurisdiction:
The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.
23
Thomas raised two other practical issues resulting from the Court’s decision—the diversion of wartime personnel and the exposure of classified information:
It also does seem quite likely that, under the process envisioned by the [Court], various military officials will have to take time to litigate this matter. And though the [Court] does not say so, a meaningful ability to challenge the Government’s factual allegations will probably require the Government to divulge highly classified information to the purported enemy combatant, who might then upon release return to the fight armed with our most closely held secrets.
24
Nothing in the Constitution gives parity, much less primacy, to the courts over war-related matters. Indeed, as Thomas argues, the Constitution assigns such authority to the president. The Supreme Court somehow believes that courts are more qualified or trustworthy to rule on detentions. But why is that? Why is it assumed that judges are more competent in weighing the rights of individuals against national-security needs? The ingrained bias against the elected branches and their ability to make well-reasoned and just judgments is destructive to the entire notion of representative government. If elected officials cannot be trusted to make wise decisions about national security, then they cannot be trusted to make decisions at all. There is no evidence that the president has abused his constitutional authority in detaining Hamdi or anyone else. There has been no widespread detention of U.S. citizens—only two, to the best of my knowledge—and only after an extensive vetting process. This hardly justifies the Court’s intervention and usurpation of executive authority.
