Note on the FIRE Suit

I see in the comments to the just-released piece on the FIRE suit against Marco Rubio and the Trump administration, that I may not have clearly explained a key element leaning toward FIRE’s view that Trump’s deportation policies are unconstitutional.

There’s significant precedent arguing that aliens enjoy the same First Amendment rights as citizens. There are multiple cases. Bridges v. Wixon is a closely analogous 1945 case about an Australian labor organizer accused of communist affiliation. Not unlike someone like Mahmoud Khalil, Harry Bridges was a foreigner thought to be here on a specious premise, advancing unpopular beliefs and causing trouble. However, the Supreme Court was clear:

Freedom of speech and of the press is accorded aliens residing in this country.

The court in that same case ruled that foreigners enjoy First and Fifth Amendment rights once they enter the country, noting the Constitution speaks of “persons,” not citizens:

Once an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all “persons…”

In the 1953 case Kwong Hai Chew v. Colding, a Chinese-born man who married an American, served in the merchant marines and “proved his good moral character” was detained en route home from a sea voyage, when an immigration inspector deemed him an “alien whose entry was deemed prejudicial to the public interest.” The court cited Wixon in noting that neither the First nor Fifth Amendment, nor the due process clause of the Fourteenth Amendment, “acknowledges any distinction” between citizens and aliens. It added:

It is well established that, if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment.

There are a handful of others that generally reference the same concept. What makes the U.S. different from Europe or Canada is that there’s no notion of balancing individual rights and the rights of society. If government can selectively infringe on the “free exercise” of speech for foreigners, it would mean conceding that government has some jurisdiction over speech.

Just wanted to highlight the above cases, which suggest the principle has to apply generally or not at all. It may sound counterintuitive, but if you think about it…