Originalism and Trump's Travel Ban (part 2)
In part 1 of this series, I argued that the constitutional authority for President Trump's travel ban is best grounded (as an originalist matter) on the President's executive power in foreign affairs. In this post, I will consider whether the Constitution contains (as an original matter) an individual rights limitation on the exercise of that power. (Readers might suspect that I delayed this post until after the Ninth Circuit's decision in Washington v. Trump, but in fact I've just been busy at my day job).
For this purpose, I leave aside any statutory issues with the travel ban (Josh Blackman has excellent analysis here and here), and I also leave aside claims based on the free exercise and equal protection clause as unpromising as an original matter (or really any matter) for the reasons outlines here by Peter Margulies at Lawfare.
The most plausible candidate for limiting the President’s power here, in my view, is the due process clause. Quite arguably, the targets of the travel ban have not received any process, as the ban was imposed by executive decree, not based on the actions of individuals and without any judicial process (or individualized executive process) associated with it.
The due process clause only requires due process in the case of a deprivation of "life, liberty or property." It seems implausible that non-citizens outside the United States have any liberty interest in coming to the United States. Among other things, it seems likely that the founding generation did not understand non-citizens outside the United States to be protected by the Constitution, and in the specific context of alien admission, English law did not recognize a right of aliens to come to England (absent royal permission). Or, put in modern terms that may nonetheless capture something of the clause’s original meaning, non-citizens abroad have no reasonable expectation to be allowed to come to the United States. (This is a conclusion Justice Scalia reached for a plurality of the Court in Kerry v. Din). As a general matter, then, the due process clause does not seem implicated by a travel ban.
However, the situation may be very different for people who already had a right to travel to the United States – namely visitors with validly issued visas or lawful U.S. residents with “green cards.” Although these people might not have a constitutional right to travel to the U.S., they do have a statutory right (or rather, a right granted by executive action pursuant to statute). As I understand it, the right is not absolute -- it still could be denied for specific individualized matters that might support denial of entry -- but it is a conditional right. They are being deprived of this right by a blanket executive action. But the right they obtained was not one defeasible by blanket executive action; it was one defeasible only in certain individualized circumstances. Thus, there seems to be a good argument that they have been deprived of a liberty right.
It remains to ask what process would be due. I would not expect an originalist to use the modern Mathews v. Eldridge balancing test, something the Supreme Court invented in the 1970s. The question should be what procedures were thought "due" for historical analogues (but see Connecticut v. Doehr [Scalia, concurring} [using Mathews test in case where procedure had no historical analogue]). I can think of two. First, in English law, the monarch could make an alien into a "denizen" (basically, in modern terms, a lawful permanent resident). Would due process attach to the monarch's decision to "unmake" a denizen? (I confess to having no idea). Second, and perhaps more directly analogous, in eighteenth century practice the executive could grant safe conducts to aliens, which created an obligation of secure passage into sovereign territory under international law. Would a revocation of a safe conduct implicate due process? (Again, I don't know the history, but it seems like a place to start).
In any event, whatever process might be due, it seems that in this situation there was no process at all, aside from an executive order based on speculation that some people within the class of visa/green card holders might be dangerous. That seems inadequate. The executive could not, I assume, order that all visa/green card holders from specified countries be detained indefinitely on the ground that some people in that group might be dangerous. The President's order, of course, does not go that far, but it does (by the above reasoning) seem nonetheless to implicate a liberty right. As a result, perhaps some process is due beyond simply a blanket prohibition.