Membership and Inclusion: The Rights of Noncitizens

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Membership and Inclusion The Rights of
Noncitizens

• Professor Garcia
• Office Hour 2-3 today
• Rjgarcia_at_ucsd.edu
• Monday Presidents Day Holiday
• Wednesday Special Guest House Representative
  Susan Davis will lecture HERE starting at 1 p.m.
• You will not be allowed in the classroom if you
  arrive after 1 p.m.. The lecture will be
  recorded.
• Next WeekWednesday Susan Davis, discussing
  women in combat
• Friday Griswold v Conn., Eisenstadt v Baird
• Then Roe, NOT Planned Parenthood v Casey

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Majority Opinion by Brennan, J.

• The Texas law must be struck down
• Compare illegitimacy One of the reasons that we
  are suspect of such classifications is because
  the children played no part in their status.
• At page 352 The discrimination in the statute
  can hardly be considered rational unless it
  furthers some substantial goal of the state. It
  does not.

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Plyler Concurring Opinions

• The Texas law might leave a permanent
  underclass (Justice Blackmun concurrence)
• At some point, some of the children will become
  documentable.
• Equal Protection analysis is becoming hopelessly
  segmented (Justice Marshall Concurrence)
• Removing undocumented children would visit the
  sins of the parents on the children. (Justice
  Powell Concurrence)

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Plyer Dissent by C.J. Burger

• Joined by Justices White, Rehnquist, and OConnor
• The Court should apply rational basis scrutiny,
  and the law here would survive just as it did in
  Rodriguez.
• Striking down the law might serve as a magnet to
  immigration
• The court should not sit as a super-legislature.
  

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Marshall in Cleburne (1988)

• Marshall agrees that the Cleburne ordinance
  singling out the mentally disabled should be
  invalidated, but disagrees that the court is
  using rational basis scrutiny.
• Marshall again argues against a tiered approach
  to scrutiny in favor of a sliding scale approach.
  
• Certainly, Marshall argues, heightened scrutiny
  is appropriate in this case.

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Boumediene v. Bush (2006)

• Congress did not have the authority to strip the
  constitutional writ of habeas corpus from
  terrorism detainees, aliens held at Guantanamo
  Bay.
• Chief Justice Roberts, Scalia, Alito and Thomas
  Dissent
• The case raises the issues of (1) Due Process for
  Persons (2) Separation of Powers and (3)
  Institutional Competence.

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Boumediene v. Bush (2006)

• The Boumediene case is about the limits of due
  process, and exactly what process is due. As I
  have said before, we know that the text of the
  constitution applies to the life liberty and
  property of persons within the united states. We
  know that there is a procedural element to due
  process, which generally means notice of the
  charges against you and a hearing.

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• But there is also a substantive component to due
  process which we will look at next time. Right
  now, does due process apply to people outside the
  United States? We are discussing membership and
  inclusion, but this is really about what within
  the jurisdiction means. I want to be clear
  again that we are not focusing in this class on
  the suspension of habeas corpus issue.

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• But that is really the main issue involved in
  Boumedienne. You are all familiar with the War
  on terror and the issue of alleged terror
  suspects who are held throughout the world. More
  than 200 of them are held in Guatanamo Bay Cuba.
  Guatanamo is a portion of the island upon which
  the U.S. maintains a naval base. Military
  tribunals Combant Status Review Tr

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Question Presented

• Whether they have the constitutional privilege of
  habeas, a privilege not to be withdrawn except in
  times of rebellion or invasion. We hold not.
  Therefore, sec. 7 of the MCA is an unconst.
  Suspense of the writ.

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I.

• AMUF
• Hamdi (2004) AMUF authorizes detention. CSRT/
  Govt says DP applies in the CSRT.
• None is a cit of a nation at war
• 2003-Stat Habeas applies to GTMO
• DC dist ct split-one no jsd/the other5thADP
• Cong. Passed the DTA stripping jsd
• Hmadan-DTA not retro so MCA passed
• Cases pending at the time of enactment gone

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IVA

• There is no jdx bar to DCT to petitioners claims,
  are there prudential barriers
• Practical considerations and exigent
  circumstances inform the definition ofand reach
  of the writ.
• No short period of time here. And give the
  Department first crack at review.

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IVB

• DTA not an adequate and effective habeas
  substitute, but court should see danger
• Proper deference must be given to the political
  branches
• It bears repeating that our opinion does not
  address the content of the law that governs
  petitioners detention.

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• Petitioners sought a writ of habeas corpus to
  test their detention. The D.C. held there is no
  statutory, no constitutional, and review of
  Congress. Four years ago, in Rasul, the Sct
  statutory habeas available
• The threshhold question is retroactive.
• Two other arguments 1) Despite the law, 2) if
  petitioners have this right, are the statuteory

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Do they have the right?

• Aliens beyond the nations border. The court
  examines the history of habeas corpus in England.
  That history is not conclusive. The history does
  not teach that the writ is barred in this
  instance. This requies examination of Johnson v.
  Eisentrager. Objective factors and practical
  concerns. First, the citizenship and status
  seeking the writ.

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• Second, the
• We conclude that the writ does run to the naval
  situtation and to the detainees.
• IF habeas, congress must not contravene the
  suspension clause. Congress did not
• Cases of rebellion or invasion.
• N

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• Unnecessary to consider the adequacy of the writ.
  In the ordinary course, here, however, there are
  extraordinary circumstance.s Detention to date.
  Some have ben in custody fo r 6 years. The CSRT
  is not an adequate substitute. Here the
  applicable statute eliminates it altogether.
  Since there is no adequate substitute,
• The review process can remain intact.

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• But the
• Freedom from arbitrary unlawful restraint is
  fundamental.
• Our opinion does not undermine C in C
• The access to the writ is necessary.
• Our opinion does not dtermine the content of the
  law that dicatates there detention.
• Liberty and security can be reconciled.

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• Justice Souter concurs
• CJ dissents, scalia, thomas alito
• Scalia, thomas

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Scalia

• The decision is beyond the courts power ultra
  vires
• America is at war with radical islamists. This
  will almost certainly cause more Americans to be
  killed.
• Foolhardy to release evidence to our enemies
• 5 justices said in HamdanPresident can get the
  necessary authority. Just kidding!

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• Inst. Competence

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Scalia

• Rasul
• No federal district court has
• In response, war against Islamic extremists.
• Congress responded with DTA which stripped habeas
  jurisdiction.
• 2 years ago, Hamdan v. Rumsfeld. The DTA did not
  clearly strip from pending cases.

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• President r
• That Act removes statuory jurisdiciton.
• Rather than acquisece in the
• The ACT is constitutional. To overrule the
• clear constitutional command. The court has
  not found any command. The majoritys decision is
  contradicted by Eisenstranger.

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• The court admits that it cannot get a clear
  answer. Fundamental separation of powers by
  which it means a role for judiciary. Although it
  is important, it is equally true that the limits
  of habeas are important. We have no competence
  to overrule the military in these matters. Many
  released prisoners

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• When uninformed Art. III judges are in charge of
  determing who will be released. The courts
  opinion appeals to the rule of law but that
  includes limitations on the courts as well.
  Germans were held in the u.s. They were never
  issued a writ. We will live to regret this self
  invited and unprecedented incursion into military
  affairs.