Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at how Donald Trump's proposal to deport illegal immigrants could pose conflicts with the 14th amendment's traditional interpretations.
THE STATEMENT AT ISSUE:
“Despite his nativist rhetoric, Donald Trump may grasp the staggering economic and social havoc that mass deportation would wreak. Hence his offhand comment, on NBC.s ‘Meet the Press,’ that he’d ‘bring them back rapidly, the good ones.’…What Mr. Trump proposes is nothing less than manufacturing a humanitarian upheaval on a scale rivaling the refugee crisis in Syria. Notwithstanding his cavalier rhetoric, there’s no evidence Americans would tolerate such a mass uprooting of people who have planted deep roots in this nation.”
– Excerpt from an editorial in The Washington Post on August 18, criticizing the proposed U.S. immigration policy outlined by Republican presidential candidate Donald Trump in a position paper publicly released on August 16.
“You’re not going to get 11 million people and drive them back out of this country. That’s just not practical.”
– A comment on the Trump deportation plan by a rival for the Republican presidential nomination, South Carolina Senator Lindsey Graham, speaking at the Iowa State Fair on August 16, as quoted in The New York Times.
WE CHECKED THE CONSTITUTION, AND…
Foreign nationals who enter the U.S. illegally and then remain do not have fully protected rights under the Constitution. They cannot vote, for example. But it has been true since at least 1886 that the Fourteenth Amendment has been interpreted as assuring them at least a significant measure of constitutional equality and fair treatment. The government simply does not have the constitutional power to do whatever it wishes with non-citizens, based solely on their illegal presence inside the country.
There is, of course, a basic constitutional understanding that a sovereign nation has broad power to protect its borders, to decide who may enter its territory, what foreign nationals who enter can do while inside its borders, and how long they may be allowed to stay. Congress basically decides most of those issues by passing laws, but the Executive Branch has very wide discretion to decide the particulars of enforcing those laws.
Neither branch, however, may simply sweep away “life, liberty or property” from undocumented immigrants, just because they lack the proper papers. And neither may the state governments where such immigrants live.
At some point within the next year or so, the federal courts – and perhaps the Supreme Court itself – will be issuing major rulings that will sort out how to divide up immigration policy responsibility between Congress and the White House. There are a handful of major cases in the lower courts now, arising out of President Obama’s sweeping executive orders overhauling deportation policy.
And, of course, the already developing presidential politics running up to 2016 will have a major focus on such questions, and what to do with more than 11 million people who are in the U.S. without permission. There already are significant differences in the views of the announced candidates of the two major political parties.
The distribution of powers between the two political branches will be, at its heart, a constitutional judgment. But looming over the process of dividing up those powers will be the ultimate limits traceable to the 14th Amendment.
To illustrate why this is so, consider first one of the proposals that Republican presidential candidate Donald Trump has inserted into his policy plan, one that instantly raises a constitutional problem.
He has suggested that the federal government “impound all remittance payments derived from illegal wages.” What that appears to mean is that, when a person illegally in the country gets a job and gets paid, and then decides to send some of the money to relatives in the home country, the government would step in and seize those funds.
If that were to be adopted as official policy, there is no doubt whatsoever that civil rights groups that represent minorities, including undocumented immigrants, would promptly sue. The claim would be that the government, at a minimum, cannot seize this property without providing some fair legal process to sort out whether the money is in fact derived from illegal activity, and whether the government has a sufficient reason for claiming a right to interrupt the flow of funds outward.
There are federal laws that provide for government seizure of funds that were the proceeds of crime, but is having a job, under federal rules that do allow some illegal foreign nationals to work here, a crime?
The biggest constitutional question that hangs over the Trump immigration policy platform, however, is the validity of the idea of mass deportation. If the candidate means that every one of the more than 11 million people now in the U.S. illegally must be sent back home, would Congress have the authority to order that without some justification, individual by individual? In other words, can planes, buses and railroad trains simply be loaded up with illegal residents, and carry them all out of the country nearly instantly?
There is no constitutional right to be in the U.S., or remain in the country, illegally, but would the courts be persuaded that mass deportation was not a race-driven policy? Would the government have to convince the courts, at least, that such an indiscriminate policy of exclusion was actually necessary to serve a valid national policy goal?
It is worth remembering that constitutional history has made a deeply harsh judgment against the policy that rounded up Japanese-Americans and sent them to prison camps, based solely on their racial identity, and the suspicion that that identity made them disloyal to the U.S. Would the courts react differently to a policy that supposes that every foreign national in the country without papers was going to commit a crime or be a threat to national security? What other reason could there be for including every one of them? That kind of broad classification of individuals would be very hard to justify in an era when human rights are now more surely respected.
The federal government’s policy on immigration has risen to the top of the political and constitutional agenda in recent months, and the nation as a whole will watch it develop, and citizens, presumably, will ultimately have some choice on the shape it takes. Some citizens, no doubt, will react based upon what they think is constitutionally acceptable.
