Alien Act

Gilbert, Lauren lgilbert at STU.EDU
Tue Jul 12 08:42:28 PDT 2005


I think it's an open question whether the Alien Act would be deemed
unconstitutional.  The Court traditionally has been quite deferential to
Congress on immigration matters, invoking the Plenary Power Doctrine, and
there are a series of cases, beginning in the late 1800s with the Chinese
Exclusion Case and running up through the present, that underscore that
Congress' power to determine who may enter and who may remain is pretty
absolute and is both an inherent aspect of sovereignty, and also falls under
the Commerce Power, the Naturalization Power, the War Power and the foreign
affairs power, arguably emanating from the penumbra of those various
provisions.  In 1952 in Harisiades v. Shaughnessy, the Court upheld the
Alien Registration Act, which provided for the deportation of any alien who
had been a member of a subversive group "at any time" after entering the
U.S.  More recently, in Reno v. American-Arab Anti-Discrimination Committee
(1999), the Court found that an "alien unlawfully in the country had no
constitutional right to assert selective enforcement as a defense against
deportation," overturning the Ninth Circuit, which had found that the
federal government's attempt to deport eight noncitizens associated with the
Popular Front for the Liberation of Palestine could be challenged as
unlawful selective prosecution based on their political associations in
violation of the First Amendment.

I personally believe that the Court has been far too deferential to Congress
on immigration laws that arguably violate basic civil rights, but I think
that how the Court would resolve the answer to your question is far from
clear. 

Lauren Gilbert
Associate Professor of Law
ST. THOMAS UNIVERSITY SCHOOL OF LAW
16401 NW 37th Ave.
Miami Gardens, FL  33054
Tel:  (305) 623-2386
Fax:  (305) 623-2390   

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, July 11, 2005 5:38 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Alien Act

	I had thought that whether the government could deport aliens
for otherwise protected speech was still an open question.  Is it clear
that simply saying that all aliens are deportable on (say) reasonable
suspicion of dangerousness would violate the First Amendment?  I realize
it might raise serious questions; I just wonder what the answers might
be, and how clear they are (Justice Stevens says "indisputable").

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of guayiya
> Sent: Monday, July 11, 2005 1:52 PM
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Alien Act
> 
> 
> To make all "dangerous aliens" deportable, as the Alien 
> Friends Act did, 
> would seem to raise serious chilling effect and overbreadth 
> questions, no? Daniel Hoffman
> 
> Sanford Levinson wrote:
> 
> >The Alien Act is unconstitutional because it is beyond Congress's 
> >enumerated powers, as Gallatin and others argued.
> >
> >sandy
> >
> >-----Original Message-----
> >From: conlawprof-bounces at lists.ucla.edu 
> >[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Volokh, Eugene
> >Sent: Monday, July 11, 2005 1:56 PM
> >To: conlawprof at lists.ucla.edu
> >Subject: Alien Act
> >
> >	In his Van Orden dissent, Justice Stevens mentions that 
> "the Congress 
> >that passed the First Amendment also enacted laws, such as the Alien 
> >and Sedition Act, that indisputably violated our present 
> understanding 
> >of the First Amendment."  (I assume that by "the Congress" he's 
> >referring to the Congress of the 1790s, since it wasn't 
> literally the 
> >same Congress; I also assume that he's referring to the Alien and 
> >Sedition Act*s*, since my sense is that they were indeed two 
> different
> >acts.)
> >
> >	 My question:  Would the Alien Act indeed be seen as 
> violating our 
> >present understanding the First Amendment?  Or was Justice 
> Stevens just 
> >inartfully referring to the Sedition Act alone?  Thanks,
> >
> >	Eugene
> >_______________________________________________
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