Yes. The government can do this. Being allowed to live in the U.S. as a non-citizen is a privilege, not a permanent right. Congress gets to set the rules for who can stay, and those rules can change. Deportation isn't considered a criminal punishment, so it's okay that the law applies to things people did in the past. Protecting the country from groups seen as a threat is more important than an immigrant's free speech rights or the fact that being deported is very difficult for them and their families.

No. This is unconstitutional and unfair. Immigrants who live here legally are protected by the Constitution's promise of 'liberty.' Kicking someone out of the country where they've spent their entire life is a very severe punishment. We shouldn't punish people forever for what they used to believe, especially if they are not a danger to the country now. It goes against American values of forgiveness.

Yes. The majority is right, but for a simple reason: it's not the Supreme Court's job to make immigration policy. Deciding who can enter the country and who has to leave is a political decision for Congress. Even if we think the law is mean or a bad idea, we as judges can't overrule it. People who don't like this law should complain to their elected representatives, not to the courts.

Yes, it's allowed. The government has the power to send non-citizens out of the country, and the courts usually can't stop it unless it goes against the Constitution. Sending someone away for being in the Communist Party in the past doesn't violate the Constitution's rules about treating people fairly, freedom of speech, or making laws that punish people for things they did before the law was made. The government's rules about non-citizens are closely tied to how it handles things like dealing with other countries, war, and keeping our type of government safe. Letting non-citizens stay in the U.S. is more like a favor than a right.

Congress's power to deport aliens should not be more important than the rights the Constitution gives to non-citizens living here. They should get due process, equal protection, and other protections under the Constitution. The right to stay in the U.S. might be more important to their 'liberty' than other rights. Unless it can be shown that letting a non-citizen stay would be dangerous to the country's safety, they should be allowed to stay and enjoy the life and freedom the Constitution promises. Congress isn't following this rule, because it wants to deport these people not for who they are now, but who they used to be. Our beliefs in forgiveness and redemption are too strong to say people can't change after making a mistake.

Making rules about immigration and deciding whether to let non-citizens stay is a job only for Congress, not the courts. Even if immigration laws are unfair or cruel, that's Congress's responsibility. If people don't like the laws Congress makes about non-citizens, they need to convince Congress to change them, not ask the courts to do it. We have to accept that Congress gets to choose which non-citizens can come in and stay, even if those choices go against American traditions or make it harder to have peace.

Matters relating "to the conduct of foreign relations... are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference."

"[A] ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government."

Rather, the ability of those aliens to remain in the United States is a matter of "permission and tolerance."

The constitutional prohibition against ex post facto laws applies only to penal legislation that imposes or increases criminal punishment for conduct predating its enactment.

First Amendment does not protect aliens from deportation because of membership in the Communist Party

Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure

For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control."

The government also argues that subsequent Supreme Court decisions rejected due process challenges to various immigration statutes.

V. The protections of the Fifth Amendment apply to all persons within the territory of the United States, including aliens.

No. The Alien Registration Act of 1940 is a constitutional exercise of Congress's power over aliens. The Court reasoned that an alien's residence is a matter of permission and tolerance, not a vested right, and is held by a 'precarious tenure.' Policies toward aliens are political questions interwoven with foreign relations and national security, making them largely immune from judicial inquiry. Regarding the Fifth Amendment, the hardship of deportation does not render the law a violation of due process. On the First Amendment claim, the Court held that the Constitution protects advocacy of change by lawful means, not incitement to violent overthrow of the government. Finally, the act does not violate the Ex Post Facto Clause because that clause applies only to criminal punishment, and deportation has consistently been classified as a civil proceeding.

Yes. The Act is unconstitutional because it punishes aliens for their past political views. Resident aliens are 'persons' under the Fifth Amendment, and the right to remain in the country where one has established roots is a fundamental part of the 'liberty' that cannot be deprived without due process. The dissent argues that the power to deport is an implied power that should not override the express guarantees of the Bill of Rights. Banishment is a severe punishment, and deporting individuals for past associations without a showing of present danger repudiates American traditions of forgiveness and tolerance.

No. The Act is constitutional because the determination of immigration and deportation policy is a political question solely for Congress to decide. The judiciary has no competence or authority to control the substantive grounds on which Congress chooses to admit or expel aliens. While a law may be crude, cruel, or reflect unwise policy, the proper venue to challenge and resist such legislation is Congress, not the courts. Therefore, the Court must defer to the political branches on this matter.

Yes. The power to deport aliens is vested in the political branches of government and is largely immune from judicial review unless it transgresses a constitutional limitation. The Act does not violate the Due Process Clause because the right to expel or deport aliens is a longstanding power inherent in every sovereign state. The Act is also not invalidated by the First Amendment as it does not prevent the deportation of aliens who were members of an organization advocating overthrow of the government by force. Deportation, although severe in its consequences, is classified as a civil procedure, not a criminal punishment, and therefore the constitutional prohibition against ex post facto laws does not apply. The government's policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. The ability of aliens to remain in the United States is a matter of 'permission and tolerance.'

The power of Congress to deport aliens should not override the constitutional protections afforded to resident aliens. Resident aliens are entitled to due process, equal protection, and other safeguards under the Constitution. The right to remain in the United States may be more important to 'liberty' than the other rights aliens enjoy while residing here. Unless it can be shown that an alien's continued presence would be hostile to the safety or welfare of the nation, they should be allowed to stay and enjoy the life and liberty guaranteed by the Constitution. Congress has not met this standard, as it seeks to deport the aliens in question not for what they are, but for what they once were. The principle of forgiveness and redemption are too deep in our philosophy to admit that there is no return for those who have once erred.

The determination of immigration policies, including the right to terminate hospitality to aliens, is a matter solely for the responsibility of the Congress and wholly outside the power of this Court to control. Whether immigration laws have been crude, cruel, or discriminatory, the responsibility belongs to Congress. The place to resist unwise or cruel legislation touching aliens is Congress, not this Court. One merely recognizes that the underlying policies of what classes of aliens shall be allowed to enter and stay are for Congress exclusively to determine, even if such determination may offend American traditions or jeopardize peace.

Harisiades v. Shaughnessy

Case Podcast

Rule of Law:

The Legal Principle

Facts:

Procedural Posture:

How It Got Here

Issue:

Legal Question at Stake

Opinions:

Majority, Concurrences & Dissents

Analysis:

Why This Case Matters

Gunnerbot