Be Wary of the Court’s ‘Protection’

On Monday, the U.S. Supreme Court rejected without comment the Clinton administration’s request for review in several key immigration cases. The government had argued unsuccessfully in the lower courts that a 1996 federal law permitted deportation, without judicial review, of noncitizens who had committed drug offenses or other crimes. The court’s denial of the government’s appeal may have fostered, at least momentarily, the impression that it had left intact the constitutional rights of immigrants facing deportation orders.

However, only a few weeks early, on Feb. 24, the high court interepreted a different provision of the 1996 law and issued a startlingly broad ruling that diminished the free speech rights of us all, professedly under the guise of allowing the Immigration and Naturalization Service to protect us from “illegal aliens” who pose a “special threat” to the country.

It did so in the context of a case--Reno vs. the American-Arab Anti-Discrimination Committee--in which the Immigration and Naturalization Service had spent more than 10 years trying to deport immigrants who had legally entered this country. What made these otherwise lawfully resident aliens “illegal” was the decision of the INS to target them for their political beliefs, coupled with minor immigration status violations.

From a constitutional perspective, the problem is this: The ostensible “special threat” posed in this case involved no more (and no less) than the lawful exercise of the fundamental rights of free speech and association. If the Supreme Court will not uphold these core liberties, what is the fate of our Constitution?

The case began 12 years ago in Los Angeles, when eight aliens went to federal court to challenge INS efforts to deport them for advocating on behalf of the Popular Front for the Liberation of Palestine. The INS regards the PFLP as an international terrorist organization and targeted the eight solely for this political affiliation, not for acts or threats of violence. The eight claimed that the INS had selectively enforced immigration laws against them in violation of their rights of free speech and association. The lower courts agreed, but in the midst of the government’s appeals, Congress passed the Illegal Immigration Reform and Responsibility Act of 1996. A key provision strips the federal courts of authority to review immigration cases except under extremely limited circumstances. Armed with this new law, the INS argued not only that it had the right to deport the eight on the grounds of their political beliefs, but also that the 1996 law forbade the courts even to review their decision before final deportation.

The Supreme Court’s February ruling gave the government a stunning victory at the expense of individual liberties. All of the justices except Justice David Souter upheld the 1996 law’s “court-stripping” provision, as applied to these individuals, with the devastating impact of depriving the federal courts of jurisdiction over the case. “Court-stripping” is an extraordinarily dangerous threat to constitutional rights and liberties because it encourages the proliferation of unchecked government power.

In the past several decades, congressional efforts--led by Jesse Helms and others--to strip the federal courts of their power to review abortion, school prayer and desegregation cases all have failed; it was patently obvious that these were legislative power grabs designed to insulate certain areas of decision-making from the constitutionally required checks and balances. Similarly, the “court-stripping” provision at issue in this case should have been struck down because it denies immigrants (whether “legal” or “illegal”) the right to challenge the circumstances of their treatment by the government. The Supreme Court could have limited its decision to these grounds alone, without reaching the 1st Amendment questions raised by the selective enforcement claims. In fact, when the court officially granted review, it suggested that it would focus solely on the “court-stripping” issues and declined to hear arguments on the 1st Amendment claims.

Therefore, the decision of five justices (led by Justice Antonin Scalia), to address the 1st Amendment issues was particularly unjust and, as Justice Ruth Bader Ginsburg noted, unnecessary. Scalia perfunctorily dismissed the notion that “alien[s] unlawfully in this country” have free speech rights; however, his opinion ignores the reality that INS determinations of what constitutes illegality now rest squarely and nearly solely within INS purview, insulated from judicial scrutiny. Thus, resident aliens face an intolerable Catch-22: If they exercise their 1st Amendment rights, they may be deemed “illegal” and a “special threat.” If they seek to challenge INS determinations of their “illegal” status, they will fail because the Supreme Court has decided that “illegal aliens” have no right to challenge politically motivated deportations, and that “illegal aliens” have no right to federal court review of such claims.

Herein lies the threat to the liberties of all. If people who came here legally can be declared “illegal” primarily because of the controversy of their political views and then denied the opportunity to appeal such a decision until it is too late to make a difference, what right to speak do we truly possess?