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

By George Rutherglen

The constitutional rights of aliens outside the United States make themselves known more by their absence than by their presence. Claims to such rights appear in judicial decisions usually to be denied and rarely to be granted. Only a few such rights exist at all for aliens outside U.S. territory, at least in the pure form of rights based entirely on the U.S. Constitution, independent of statutes and treaties. This otherwise disheartening conclusion still leaves open the protection of constitutional interests by other means—the protection of interests beyond the scope of particular constitutional provisions and by means other than judicial enforcement of constitutional rights. Rights and remedies derived from other sources of law constrain the power of government even when the Constitution does not do so itself or does so only to a very limited extent. Checks and balances between Congress and the President can significantly deter government action against aliens, but they do so primarily through the means of duly enacted law that, almost by definition, requires a basis in non-constitutional law. Individual constitutional rights play a similar role, by stimulating or checking political action, most likely through the adaption of existing mechanisms of enforcement to counter novel threats to rights, whether of citizens or aliens. The article concludes by examining how even this limited role of constitutional rights might operate to check the immigration orders recently issued by President Trump.

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