Liberty: A Human Right, or a Citizen Right

Abstract

Aliens do not have a constitutional right to come to this country, or to remain in this country, unless authorized by law. The subject of this paper is the right of aliens to liberty while their immigration status is being determined. By "liberty," I mean to the most basic meaning of freedom: physical freedom; freedom from government detention; freedom to avoid being locked up in a government prison cell. In the months following September 11, 2001, federal officials arrested hundreds, if not thousands, of residents of the United States. They were detained in connection with terrorism inquiries as well as other immigration violations, often for weeks, without being told of the charges against them. The numbers and identities of those detained remain unknown, guarded by secrecy imposed in the name of national security.

The question is: how does the Fifth Amendment Due Process Clause apply to aliens? If the Fifth Amendment Due Process clause applies to aliens who are in the United States, the legitimacy of the post-September detentions is highly questionable. As Professor David Cole observed, "discrimination against noncitizens remains one of the few group-based categories that many people still feel comfortable employing." But this comfort may be transitory. "Virtually every significant government security initiative implicating civil liberties . . . has originated in a measure targeted at noncitizens." The power of federal officers to hold aliens incommunicado can only be justified by war powers, insurrection or another danger or emergency. This power over foreigners in this country is virtually indistinguishable from the power these officers have over American citizens. Our respect for universal rights to liberty of aliens may be an indication of the respect we will show the rights of our citizens tomorrow.

Keywords: rights of aliens, immigrant rights, alien detention, due process clause, fifth amendment

JEL Classification: H56