Detention of Terrorist Suspects

[Edward Hartnett]

Unless I am missing something, what we are talking about is the national
government engaging in discrimination among aliens on the basis of national
origin.  That is, we are not talking about national origin discrimination
among citizens (as to which the blackletter law call for strict judicial
scrutiny), nor are we talking only about a distinction between aliens and
citizens (as to which strict judicial scrutiny is generally applied to
actions by state government but not the national government), but the
intersection of the two.  At that intersection, is there any authority
calling for strict scrutiny?

Brest, Levinson, Amar, and Balkin write:

". . . because of doctrines originally developed in the Chinese Exclusion
Cases, there is no constitutional difficulty with national quotas that
allow persons of some nations to immigrate to the United States and become
citizens while simultaneously limiting (or even excluding) opportunities
for persons of other nations. . . . . Does this suggest that federal action
ordering the internment of resident aliens or ordering their immediate
deportation on the basis of their country of origin would be
constitutionally permissible under the Fifth Amendment, assuming that it
were authorized by statute?"

BLAB at 819.  Is there a ready answer to their question?

If there isn't any authority calling for strict scrutiny of the national
government's discrimination among aliens on the basis of national origin,
and if the question posed by Brest, Levinson, Amar, and Balkin does not
have a ready answer, then the distinction made by Gonzalez may be an
important one in domestic law.

As for international law, does it really prohibit a nation from treating
aliens of one nation differently than aliens of another nation?  Is Canada
obligated not to make distinctions among aliens from (for example) the
United States, Iraq, Cambodia,  Venezuela, Cuba, and France?

Ed Hartnett
Seton Hall





                    "David B. Cruz"
                    <dcruz at LAW.USC.EDU>        To:     CONLAWPROF at listserv.ucla.edu
                    Sent by: Discussion        cc:
                    list for con law           Subject:     Re: Detention of Terrorist Suspects
                    professors
                    <CONLAWPROF at listserv
                    .ucla.edu>


                    11/28/01 11:10 PM
                    Please respond to
                    Discussion list for
                    con law professors






I took Professor Martin's post to be evoking the blackletter doctrine that
not only race discrimination but also national origin discrimination is
constitutionally suspect and subject to strict scrutiny, in which case
it's not at all clear what denying reliance on race but admitting national
origin buys the administration (except perhaps in terms of public
opinion).  National origin is in this respect different from alienage
discrimination, which is generally suspect when conducted by state
governments but often not when it's the national government.  This doesn't
mean that the reliance on national origin is at the end of the day
unconstitutional because it fails strict scrutiny, but nothing explicit or
implicit in Professor Martin's post is to the contrary.  I don't think
Professor Martin owes constitutional law professors any more explicit
"connecting up" given the obviousness of the doctrinal point.

-David B. Cruz, USC Law (Cal.)

On Wed, 28 Nov 2001, Blumstein, James wrote:

> I think that we on the list are owed more than an implicit exclamation
point
> linked to a heavy dose of not so implicit indignation and outright ad
> hominem attack on this.  National origin has been used historically in
> immigration as a basis for setting policy. And such factors need not be
> race-based (e.g., questioning German nationals during WW II).  I (and
> doubtless others) may be persuaded that national origin is an
inappropriate
> basis for action under the totality of circumstances, but a more reasoned
> approach is surely warranted. More analysis less vituperation and
> assumption... J.F. Blumstein
>
> -----Original Message-----
> From: Francisco Forrest Martin [mailto:ricenter at IGC.ORG]
> Sent: Wednesday, November 28, 2001 5:48 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Detention of Terrorist Suspects
>
>
> I just heard the most remarkable statement from Alberto Gonzalez, who is
> White House counsel, on the News Hour with Jim Lehrer.  Gonzalez said
that
> the detention of thousands of terrorist suspects was based not on race --
> BUT ON NATIONAL ORIGIN or age.  Is this the best that the White House can
> get for legal counsel?
>
> Francisco Forrest Martin
> Ariel F. Sallows Professor of Human Rights
> University of Saskatchewan College of Law
>