The Rights of Aliens Under the United States Constitution: At the Border and Beyond

Abstract

This article describes the intricacies of U.S. constitutional law on the rights of aliens. It identifies three general tendencies that bear on recognition of these rights: status as a citizen or alien, and if the latter, what status under the immigration laws; where the activity violating the right took place, either inside, outside, or at the border of the U.S.; and the text and nature of the right, including its recognition in other countries. None of these factors yield a determinate answer to every case involving rights of aliens (or citizens for that matter), but they do organize the complex web of constitutional decisions on these issues. Those complexities have been most controversial in recent years in cases involving immigration and the war on terror. The lesson to be drawn from these cases is that the strength of constitutional rights, especially in the international context, depends on the actions by the political branches to make those rights truly effective. The article concludes by examining how, even in this limited role, constitutional rights might operate to check the immigration orders recently issued by President Trump.

Keywords: citizens, aliens, immigration, extra-territoriality, constitutional rights, admission, asylum