Philip Hamburger (Columbia University – Law School) has posted No Rights for Deportees? on SSRN. Here is the abstract:
In 1785, three “Algerians” arrived in Virginia. Although they are long forgotten, their fate remains illuminating about deportation.
The constitutional status of deportees is a puzzle. Lawfully visiting foreigners are widely acknowledged to enjoy constitutional rights. Yet deportees are largely without such rights, including speech rights and the due process of the courts. This disjuncture, like the rest of immigration exceptionalism, seems disturbingly unprincipled. But is it really unprincipled or puzzling?
Beginning with the story of the “Algerians,” this Article explains that deportees lose their rights under American law because of an underlying principle, drawn from the law of nations, demarcating the protection of the law. In a multinational world, the domain of each nation’s law must be limited, and the principle of protection was the constitutionally assumed principle that delineated the domain of American law. This principle, the nation’s long adherence to it, and its value for both security and generosity in immigration explain why deportees are generally without rights in the American legal system.
Very interesting and recommended.