Constitutional Rights for Nonresident Aliens: A Doctrinal and Normative Argument

Abstract

The decision in Boumediene v Bush, 553 U.S. 723 (2008), held that nonresident aliens (NRAs) detained for years in Guantanamo have a constitutional right to bring a habeas petition to challenge their detention. But the larger issue of constitutional rights for NRAs remains unresolved. Do NRAs outside of Guantanamo have constitutional rights? If so, do they enjoy more substantial protections, such as those under the Fourth and Fifth Amendments? I argue here that the doctrine remains unclear, the text is likewise unclear, originalist arguments should carry little force, but the normative argument is clear. As a condition of the legitimacy of U.S. law, NRAs must enjoy a range of constitutional rights that protect them from unjust harm at the hands of the United States. This argument is the general part of a pair of articles; the other part argues specifically that NRAs enjoy Fourth Amendment rights not to be subject to unreasonable searches and seizures — see Alec Walen, Fourth Amendment Rights for Nonresident Aliens, German Law Journal, Forthcoming.