Category Archives: Law: Right to Travel

The Assault on Citizenship–and Citizens

The Trump administration has taken many official actions that are transparently illegal. For example, there have been a laundry-load of illegal attempts to stop the implementation of various valid regulations that the new EPA, Dept. of Interior, and other agencies want to amend or withdraw. Our law doesn’t work that way, and federal judges have done a decent job of laughing those transparently illegal actions out of court and keeping the old regulations in place until a valid new one is promulgated.

Worse, there have been terrible and illegal actions by the Trump administration preventing asylum-seekers from presenting their claims, and especially evil actions in which the administration has gone out of its way to separate refugee children from their parents–a policy whose harms were intensified by ineptitude, or more likely intentional viciousness, in which the Trump administration then lost the children, or never collected or lost the information about which child belonged with which parent, or deported the parents and then said it was unable or unwilling to reunite the families. Children in detention have at times received no care, little care, or been caged much like animals. At least one toddler died following, and as far as we can tell as a result of, this captivity. Here too, we have more than one judge with a spine doing what they can to force the Trump administration to clean up the mess it made. Cooperation has been imperfect at best, and there is evidence that suggests outright obstruction at times.

Do not be fooled into the complacent view that only foreign people are at risk. The Trump administration is gunning for naturalized citizens. Where once denaturalization was an exceptional remedy for significant immigration fraud (such as failing to admit WW2 Nazi ties), now it’s an enforcement goal to be applied more broadly.

But that’s not all: the Trump administration is also trying to denaturalize natural-born citizens. We learn now that the Trump administration is coming for the citizenship of a substantial number of Mexican-Americans. The purported reason is doubts about the validity of their birthright citizenship due to the existence of some cases (perhaps a very small number, it isn’t clear yet) of actual fraud in which children born south of the Rio Grande were said to have been born north of it. The degree of particularized suspicion sounds, from what we know so far, quite thin. The near-impossibility of finding proof of birth location by midwife 30+ years after the fact is obvious. And, not that it should matter, many of the victims of this policy are veterans, cops, or holders of other jobs of trust and responsibility.

These cases are only part of a more general pattern of aggressive enforcement against Black or Brown people. In one case, ICE held a (Black) citizen in detention for 1,273 days. ‘Mistakes’ are legion.

Some of these policies are not new in principle but have been greatly generalized in application from rare and exceptional to routine and careless or grossly and gleefully reckless, thus including cases where proof is thin or lacking. In time they too may founder in the courts. Meanwhile they will deal pain, spread fear, and could stop a large number of people from voting while their cases are being litigated, for fear of committing the federal crime of non-citizen voting. Win-win for Trump.

Trump notoriously envies Russian strong-man policies. How long before the Trump administration attempts to adopt Russian policies on removing citizenship of dual nationals, or of dissidents? Unthinkable? I would have said revoking some citizens’ passports and locking up others on the grounds they are fake citizens should cross every line and serve as ample warnings. The behavior we have already seen by the US Government was considered unthinkable when I was in law school 30 years ago. When I palled around with the cypherpunks in the 90’s and they worried about oppressive domestic regimes, it was easy to dismiss them as paranoid; I myself wavered at times on the extent to which they were sensibly cautious or plain nuts (and, admittedly, it may have varied among them).

Clichéd perhaps from overuse, but more apt then ever, are the words of Martin Niemöller:

First they came for the communists, and I did not speak out—
Because I was not a communist.

Then they came for the trade unionists, and I did not speak out—
Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

My wife, a green-card-holder, is going abroad today for a week in which she’ll attend an academic conference. Will the Trump administration let her back into the US next week? Nothing to worry about, I think, because she’s white, and British even if she is an academic. Not the targeted group at present. That we should have to make this calculation and measure our privilege is an outrage for us, a far more serious wrong for those lacking it, and a tragedy for this country.

Posted in Immigration, Law: Right to Travel, Trump | 2 Comments

ACLU Brings Important Freedom-to-Travel Lawsuit

The ACLU’s blog post is actually not over the top here: We’re Suing the Government for Violating the Rights of Passengers on Delta Airlines 1583 in Police-State Fashion.

The full complaint in Amedei v. Duke is online.

Some key bits below the fold: Continue reading

Posted in Civil Liberties, ID Cards and Identification, Law: Right to Travel | Leave a comment

Math Anxiety

It’s more dangerous than we suspected.

(“Ivy League economist ethnically profiled, interrogated for doing math on American Airlines flight” … although he’s actually … wait for it … Italian.)

Spotted via Kevin Drum, Heroic Passenger Recognizes Quantitative Economics as True Threat to America.

I am wondering if I need a new blog category for “paranoia”?

Posted in Law: Right to Travel | Leave a comment

Can Governors Prevent Syrian Refugees From Entering Their States? (Updated)

I am confident that in a just world, the answer should be “no”. But we don’t always live in a just world. I wish I had time to write a careful analysis, but I don’t, so here are some first thoughts. Corrections and amplifications welcomed.

UPDATE: This is why I should never blog from memory, at least pre-coffee. This morning I conflated the right to move about within a state — not a clearly established federal right, cf. the aftermath of Katrina — with the right to move about between states, which is quite well established: Sáenz v. Roe, 526 U.S. 489 (1999) held that a classification (here, lesser welfare benefits for new residents in their first year) that has the effect of imposing penalty on the right to travel violates the Equal Protection Clause absent a compelling governmental interest. What’s more the Court defined the right to travel interstate as having three parts: the right to enter and leave another State; the right to be treated as a welcome visitor while temporarily present in another State; and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.

That ought to settle it.

Three areas of law seem relevant to the question.

First, immigration law, which is a matter of only federal concern. States do not in any way get to control movement across the international border. So if the feds want to let refugees into the US, they are admitted to the US. Even at airports in states that say they don’t want refugees.

Second, anti-discrimination law. Here, we find more of a patchwork. Rather than a single federal statute prohibiting national origin discrimination, we have a collection of piecemeal legislation. It might be that none of the usual anti-discrimination laws, which are aimed at things like housing and employment, speak to the issue of free movement between states.

Third, and not least, there is the Equal Protection clause of the Constitution, backed up by § 1983 of the federal code (§ 1983 prohibits the deprivation of constitutional and federal statutory rights by persons acting under “color of law”). As I understand it, neither the Equal Protection Clause nor any other part of the Constitution has been definitively held by the courts to create a right of free movement between states. [Note the update above – should be “within” not “between”.] Thus, at least at the Supreme Court level, it is technically an open question whether a state might close its borders to everyone. (The question arose after authorities closed a bridge preventing escape from areas of New Orleans hit by Hurricane Katrina. I have some doubts that a state could seal its border legally other than briefly in response to an emergency, but again, if memory serves the Supreme Court hasn’t prohibited that in so many words.) What is not at doubt, however, is that if a state were to attempt some sort of border control, it must do so in a manner that does not discriminate invidiously. (If they are searching for a White Toyota, it is not invidious to only stop White Toyotas.) The state may not treat its own inhabitants better than those of other states. And it may not discriminate on grounds of race or any other suspect class. I would presume national origin is such a class; whether immigration status qualifies (if only a proxy for national origin) is a little trickier, but I’d hope so.

Somewhat related: Important Freedom to Travel Decision From the DC Circuit (7/11/09); Plenty of Blame to Go Round (IV) (9/11/05)

Posted in Civil Liberties, Law: Constitutional Law, Law: Right to Travel | Leave a comment

Can’t Make This Stuff Up

Nobel-PrizeTSA Questions Scientist Trying to Bring His Nobel Prize Through Security:

“They’re like, ‘Sir, there’s something in your bag.’ I said, ‘Yes, I think it’s this box.’

“They said, ‘What’s in the box?’ I said, ‘a large gold medal,’ as one does.

“So they opened it up and they said, ‘What’s it made out of?’ I said, ‘gold.’ And they’re like, ‘Uhhhh. Who gave this to you?’ ‘The King of Sweden.’ ‘Why did he give this to you?’ ‘Because I helped discover the expansion rate of the universe was accelerating.’

“At which point, they were beginning to lose their sense of humour. I explained to them it was a Nobel Prize, and their main question was, ‘Why were you in Fargo?’”

Daily Telegraph via View from the Wing.

Posted in Law: Right to Travel | Leave a comment

Judge Holds No-Fly List Violates Due Process and APA

Took a long time, but the courts are coming around. Here’s a major decision from Judge Anna Brown in the Latif v. Holder case. (Via Just Security Blog.)

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