Immigration and Constitutional Consequences of Post-9/11 Policies Involving Arabs and Muslims in the United States: Is Alienage a Distinction Without a Difference?

Abstract

There has been much public and academic discussion on post-9/11 government policies and whether their impact on Arabs and Muslims in the United States is unconstitutional “racial profiling” or legitimate immigration control based on constitutionally permissible nationality distinctions. The main assumption underlying this debate is that the focus of the government's policies in the “war on terror” is noncitizens, even if principally Arabs and Muslims. Thus, the racial profiling issues center on the differences between the constitutional due process analysis applied to noncitizens and that applied to citizens. This Article challenges the above argument and a number of its underlying assumptions. Part I challenges the assumption that the targets of the government's domestic policies in the “war on terror” are Arab and Muslim noncitizens. We review evidence indicating that U.S. government targeting of Arabs and Muslims, both aliens and citizens, began long before September 11, 2001. This part then examines the full range of post-9/11 government actions and concludes that the communities targeted are Arab and Muslim citizens as well as noncitizens. Part II addresses the long-term immigration and constitutional consequences of significant new policies and their effects on noncitizen Muslims and Arabs in the United States. Part II also analyzes whether the laws and policies meet constitutional standards in either the immigration or nonimmigration context. Part III concludes with an assessment of major policy changes and their long-term consequences -- across the citizen/noncitizen divide -- on the overall integrity of the constitutional system: consequences to free speech and association, checks and balances, and open judicial and governmental process.