“I’m not arguing the Constitution gives each person a right to enter,” said Jennifer Gordon, a professor of immigration law at Fordham University Law School. But “when the U.S. government establishes a preferred religion, it violates the Constitution.”
Non-citizens don’t share all the rights of citizens under the U.S. Constitution. They’re subject to immigration law, under which the executive branch has broad authority to determine whether it wants them in the country or not. And until they’ve passed through immigration control, they aren’t technically on U.S. soil, thanks to a “legal fiction” or counterintuitive legal understanding that carves out an exception to the normal rule, said Gordon.
“When you’re standing at JFK, you stand outside the borders until you are inspected and admitted,” she said.
“There’s no dispute at the absolute core,” said Andrew Kent, a constitutional scholar at Fordham Law. “If somebody is picked up by police they the have same Miranda and due process rights in all contexts except immigration law.”
“The parts of this order that discriminate against people based on national origin are in violation of the 1980 Refugee Act,” said Gordon. “That’s a clear statutory violation.”
The Trump administration will point to the broad discretion given the executive branch and the Attorney General to determine which refugees to allow in and which to reject. And it is true U.S. law is less than consistent on how to treat foreign nationals. A line of Supreme Court decisions extending from the 1890s into the Red Scare years of the 1950s held that “whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned,” Gordon said.