The Supreme Court did the rare, good thing last week when it held, in Timbs v. Indiana, that the excessive fines clause is incorporated against the states.  Because I’m a spoil sport, I wanted to raise a note of concern about the concurring opinions from Justice Gorsuch and Justice Thomas.

The majority in Timbs held that the excessive fines clause applied to the states by virtue of the due process clause of the Fourteenth Amendment.  That is consistent with the Court’s current doctrine, which maintains that the due process clause incorporates some bill of rights provisions to the states.  Thus, when the Court held that the Second Amendment right to bear arms was incorporated against the states, Justice Alito’s plurality opinion (joined by Justice Scalia, as well as Justice Kennedy and the Chief Justice) relied on the due process clause.

In that case (McDonald v. City of Chicago), Justice Thomas wrote a concurrence explaining that he would have held that the Second Amendment is incorporated against the states by virtue of the privileges and immunities clause.  In Timbs, Justice Thomas repeated that view in a concurrence saying he would have relied on the privileges and immunities clause to incorporate the excessive fines clause against the states.

Justice Gorsuch also wrote separately, in which he stated his view that “[a]s an original matter … the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause,” and cited Justice Thomas’s concurrences in Timbs and McDonald.

But, Justice Gorsuch continued, he did not have to decide that issue now because “nothing in this case turns on that question.”  

What kind of case would turn on that question?  One that comes to mind is a case I’ve written about before--Garza v. Hargan, the case about the Office of Refugee Resettlement’s attempt to delay (and really prevent) the undocumented minor women in ORR’s custody from having abortions.

How so?  The due process clause provides that “nor shall any State deprive any person of life, liberty, or property.”  In Garza, Judge Henderson on the D.C. Circuit adopted the argument that Texas was pressing at the time--that the undocumented minor women in ORR’s custody were not “person[s]” under the due process clause because they are not citizens and do not have substantial connections to the United States, and thus do not have any constitutional rights.

As I wrote then, that argument made nonsense of the constitutional text (which extends its protections to persons, not just citizens), and of precedent (including Plyler v. Doe, which held that states could not refuse to provide public education to undocumented children).

But the privileges and immunities clause is different.  It provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  In other words, only the privileges or immunities of citizens are protected; the privileges or immunities of non-citizens (or perhaps just those non-citizens who lack substantial connections to the United States) are not. And because the Court has grounded its unenumeratd rights jurisprudence in the due process clause rather than the privileges and immunities clause, Justices may be able to limit the relevance of decisions like Plyler if the Court shifted to the privileges and immunities clause.

The upshot is that if the privileges and immunities clause is the provision that incorporates the bill of rights provisions against the states -- and the provision that is the source of other unenumerated rights -- then states are not limited by the bill of rights (or by any unenumerated rights) in how they treat non-citizens.   

Now in Garza, it is the federal government (not the states) that is preventing the undocumented, minor women from having abortions.  But if the privileges and immunities clause, rather than the due process clause, is the source of any unenumerated rights (as Justice Thomas has said and Justice Gorsuch has suggested), then there would be questions about whether there any unenumerated rights against the federal government at all, since there is no privileges and immunities clause (like the one in the Fourteenth Amendment) that applies to the federal government. And if there are no unenumerated rights against the federal government, there would be no constitutional problem with the government’s conduct in Garza.  It would also mean that the federal government could conduct medical experiment and perform forcible abortions on people too (again, since there would be no unenumerated rights against hte federla government).  That theory would also mean that noncitizens (or noncitizens who lack substantial connections to the United States) would possess no unenumerated rights against the states.

It is conceptually odd to think that citizens possess unenumerated rights against the states, but not the federal government.  And the idea that noncitizens possess no unenumerated rights against either the state or the federal government is odd too.

The implications of this theory are also staggering.  As I wrote earlier:

[T]wo exchanges between Justice Kagan and the lawyer representing the United States in [Jennings v.] Rodriguez [a]re potentially relevant to [this line of argument in] Garza:

JUSTICE KAGAN: Mr. Stewart, is – is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?

MR. STEWART: It is premised on that….

JUSTICE KAGAN: Okay. If it is premised on that, I mean, Justice Scalia in one of his opinions talked about, surely, that -­that can't be right; could we torture those people, could we put those people into forced labor? Surely, the answer to that is no. Is that right?

MR. STEWART: Yeah, I should have been more precise in saying they have no constitutional rights with respect to the determination whether they will be allowed to enter the country.

JUSTICE KAGAN: Okay.  So -- but they do have some constitutional rights, not to be tortured, not to be placed in hard labor...

And the other exchange:

JUSTICE KAGAN: But if I could just push on Justice Kennedy's question a bit, I mean, for those -- that class of aliens, we are talking about people who have been in this country, who clearly do have various constitutional rights. And are you suggesting that if the backlog is five years, it's okay to keep them there for five years …?

MR. STEWART: I would say that is not unconstitutional….… Let me give you my most extreme answer, and then let me give you a – a backup answer. The most extreme answer is the criminal alien who is detained for more than six months, unlike every other form of detention that are -- is discussed in the briefs, that alien always has the option of terminating the detention by accepting a final order of removal and returning home.

JUSTICE KAGAN: I take it that that's your most extreme answer because it doesn't sound all that good.

(Laughter.)

The idea that persons who lack substantial connections to the United States have no [unenumerated] rights … is, indeed, laughable.  Could the United States forcibly sterilize those persons if it apprehends them at the border? Could the United States take their organs and donate them to citizens?  Could the United States conduct medical experiments on the noncitizen children who were detained in Flores, or keep them in “shackles, chains, [and] barred cells”?  Could the United States force women apprehended at the border to have abortions?

Texas would have to say yes.

Now the concern is that Justices Thomas and Gorsuch would as well.

@LeahLitman

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