//  1/11/18  //  In-Depth Analysis

Texas has a knack for writing amicus briefs that offer some of the more outlandish justifications for some of the federal government’s more outlandish policies.  Texas did it in the entry ban litigation, arguing, against logic and doctrine, that the Youngstown framework somehow resolves the constitutional challenges to the President’s entry ban/suspension on refugees.  Texas is doing it again in Garza v. Hargan, the case in which the Trump administration is attempting to impede undocumented young women’s access to abortion by refusing to release the women from its custody so that they can obtain abortions.

The United States’ arguments in Garza have, at times, been somewhat hard to pin down. Marty Lederman has helpfully and extensively  documented the United States’ shifting positions (as well as some more general shiftiness on its part).  The United States’ arguments include, or have included, that:

(1) The United States does not want to be “complicit” in an abortion by “affirmatively facilitating” one. 

(2) The United States has the authority to determine that it is not in these women’s best interests to have the abortion even though they have decided otherwise.  (This argument was made in the district court, and not pursued thereafter.)

(3) The young women could leave the United States (for countries where they may be at risk of violence or persecution, and where abortions are not permitted).

Texas somehow managed to take this flimsy argumentation and make it even worse in an amicus brief it filed in the district court. (Texas’s brief is cosigned by Arkansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, and South Carolina.  If you live in any of these states and do not know who your governor or state attorney general is, I would encourage you to learn that information, as well as the other activities your attorney general may have been undertaking. If you live in Michigan, see, for example, this article about AG Bill Schuette.)

In the brief, Texas went all in on the argument that undocumented young women have no Fifth Amendment rights at all (or at least no substantive due process rights—more on that in a bit).  (See pg. 3 (“[D]o the Fifth Amendment’s substantive due process guarantees apply to unlawfully-present aliens with no connection to this country who were apprehended while attempting to cross the border?  The answer is no.”).) 

The Fifth Amendment reads, in relevant part:

No person shall … be deprived of life, liberty, or property, without due process of law.

The amendment thus clearly protects persons, not citizens.  And Texas acknowledges that “the Supreme Court has held that unlawfully-present aliens are ‘persons’ protected by the Fifth Amendment.”  (page 4) 

But, Texas continues, “the full scope of the Fifth Amendment’s protections that apply to citizens do not cover everyone who merely attempts to enter this country …. ‘[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.’”  (id.) For that proposition, Texas cites United States v. Verdugo-Urquidez, a case about whether the Fourth Amendment’s warrant requirement applied to a search of a foreign national in Mexico.  (The Court said it does not.)  From a case about whether the Fourth Amendment’s warrant requirement applies to a search of a foreign national’s residence outside the United States, Texas concludes that some foreign nationals who are undocumented while in the United States have no Fifth Amendment rights at all.*


What, you’re not persuaded?

In the arguments in the district court during the first round of this litigation, the United States avoided taking the position that the undocumented young women involved in the case have no rights under the Fifth Amendment.  But when the United States merely refused to concede that these women had constitutional rights, the district court was still taken aback: “That is remarkable,” the court told the government.

Texas’s position is indeed remarkable—it does not account for the text; it dismisses precedent; it has untenable implications; and it makes a mockery of the English language.  It does, however, have one thing going for it: Texas’s position is a better reflection of how the Office of Refugee Resettlement views these young women—as something less than autonomous human beings.

(1) Text: See above, and below (implications).

(2) Precedent (or lack thereof)

Boumediene v. Bush, a case not discussed in the brief, held that noncitizens who are detained by the United States outside the formal territory of the United States have rights under the suspension clause. Boumediene involved people who were being forcibly held by the United States; that’s partially why, according to some commentators, the Court held that they had rights. That is also true here. Boumediene involved people who were being held in an area over which the United States has “de facto” sovereignty.  That is also true here, as the United States has both de facto and de jure sovereignty over areas within its borders.  Boumediene did not apply a “substantial connections” test.

Zadvydas v. Davis, a case discussed in the brief, assumed that noncitizens who are being detained for immigration proceedings have rights under the due process clause of the Fifth Amendment.  Zadvydas interpreted immigration statutes to allow noncitizens to challenge the length of their detentions so as to avoid concerns under the due process clause of the Fifth Amendment, the same provision at issue in Hargan. Texas distinguishes Zadvydas on two grounds—one is that it didn’t overrule Verdugo-Urquidez’s purported requirement that noncitizens have “substantial connections” to the United States. Verdugo-Urquidez is a Fourth Amendment case that predated Zadvydas. Zadvydas also stated that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”  (Emphases mine.)  Texas also points to dicta in Zadvydas that suggested “aliens who have not yet gained initial admission to this country would present a very different question.”  See the earlier quote from Zadyvdas about persons temporarily or unlawfully in the United States having rights, as well as the below discussion of the implications of Texas’s position. See also Justice Kennedy’s dissent in Zadvydas, which stated that “[B]oth removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious.”  (Emphases added)

Reno v. Flores, a case not discussed in the brief, rejected a due process challenge to the then-Immigration-and-Naturalization-Services’ policy of detaining non-citizen minors during the duration of immigration proceedings. The procedures were challenged on due process grounds; the Court did not take the position that, as noncitizens with potentially no substantial connections to the United States, the children lacked any rights under the due process clause at all.

Plyler v. Doe, a case discussed in the brief, held that Texas could not deny public education to undocumented children.  Texas distinguishes Plyer on the ground that its analysis purportedly applies only to aliens that had “developed substantial connections with this country.”  But nothing in Plyler suggests that Texas could exclude from public schools undocumented children who have been in the United States for only a certain limited period of time, and a better reading of Plyler would be that Texas could not do so.

I should also say, at this point, that it’s not clear how Texas’s proposed rule that the Fifth Amendment protects only noncitizens with substantial connections to the United States would apply to this case.  Texas asserts that the young woman in the case (and possibly all young women subject to ORR’s policy) would not qualify for Fifth Amendment protections because she was apprehended at the border, and has been in the federal government’s custody ever since. 

But why could the women subject to the ORR policy not develop ties to the United States while they are in custody, assuming they have not done so already? One of the reasons why minors are put in Health and Human Services’ custody, rather than the Department of Homeland Security’s custody, is to make their lives in the United States easier and help them to normalize their lives and perhaps even build connections here.  As Marty has noted, ORR has explained that giving HHS, rather than DHS, custody over the minors "helps new populations maximize their potential in the United States by linking them to critical resources that assist them in becoming integrated members of American society."  (Emphases mine.)

(3) Other (Potential) Precedent

There are two cases on the Supreme Court’s docket this term that would be rather easy to resolve under Texas’s understanding of the Fifth Amendment.  One case is Sessions v. Dimaya. The question in Dimaya is whether section 16(b), as incorporated into the Immigration and Nationality Act, is unconstitutionally void for vagueness. The vagueness doctrine is based on the due process clause of the Fifth Amendment (a point Justice Gorsuch took pains to clarify during the oral argument).  If noncitizens who lack substantial connections to the United States have no rights under the due process clause of the Fifth Amendment, then that might resolve Dimaya itself, since we would need findings on the petitioner’s substantial connections to the United States before addressing the Fifth Amendment argument on the merits. It would also mean that section 16(b) could not be unconstitutionally vague when applied to persons without substantial connections to the United States.  QED.

The other case is Jennings v. Rodriguez, which will (or will not, since Justice Kagan is now recused) address whether persons who are detained under three immigration statutes have constitutional rights, under the Fifth Amendment’s due process clause, to bond hearings when they are detained for extended periods of time. If persons without substantial connections to the United States have no rights under the due process, that would resolve some of the issues in/applications of Rodriguez. If persons who lack substantial connections to the United States have no rights under the due process clause, it would also mean that such persons could be detained forever, but that detail concerns the implications of Texas’s view, which brings me to….

(4) Implications (Or, The Horror)

Texas purports to evaluate the different positions in Garza by considering their implications. See page 10 (“If on the facts of this case Doe ha a Fifth Amendment right to an abortion, it is hard to imagine why she could be denied any other constitutional rights—such as the Second Amendment right to keep and bear arms.”). 

So let’s consider some implications of Texas’s position.  When I initially wrote about this case, I highlighted two exchanges between Justice Kagan and the lawyer representing the United States in Rodriguez that were potentially relevant to 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.


The idea that persons who lack substantial connections to the United States have no rights under the due process clause 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, I think, because Texas thinks that the “‘initial inquiry’ in assessing any due process claim” is whether the Fifth Amendment applies to the prospective plaintiff, and the rights the plaintiff is asserting.  According to Texas, “the Court should begin with a threshold question: do the Fifth Amendment’s substantive due process guarantees apply….” And Texas confidently and definitively answers “no” to that question:  It maintains that the Fifth Amendment does not “apply to unlawfully-present aliens with no connection to this country who were apprehended while attempting to cross the border.”

On page 3, Texas presents its argument as limited to “the Fifth Amendment’s substantive due process guarantee.” But why would that be the case? The Fifth Amendment protects one group—“persons”; it does not extend one set of protections (those that are procedural in nature) to one group, and another set of protections (those that are substantive in nature) to a different group.  It does not extend full-blown substantive protections to one group, and watered-down or laughable versions of substantive protections to a different group.  The text refers to “persons” full stop; all of the Fifth Amendment’s protections apply to those persons.  If persons without substantial connections to the United States don’t have rights the Fifth Amendment, they don’t have rights under the Fifth Amendment. In any case, the prohibitions on torture and medical experimentation are derived from the *substantive* guarantees of the Fifth Amendment, which are the ones that Texas says do not extend to persons without substantial connections to the United States.

Texas’s argument on the Second Amendment also belies its suggestion that its position about the scope of the Fifth Amendment’s protections is somehow limited to the Fifth Amendment’s substantive guarantees, rather than its procedural ones:  If the word “persons” in the Fifth Amendment has to be construed to mean the same thing as the phrase “the people” in the Second Amendment, then surely “persons” under the Fifth Amendment has to be construed to mean the same thing as, well, itself. 

(5) English Language (At Least As Commonly Understood Up To This Point)

The United States has resorted to rather strained usages of the phrase “affirmatively facilitate” and the word “complicity” in this case.  The United States is using “affirmatively facilitate[e]” to mean “releasing from our physical custody so that a woman can see a doctor,” and “complicit” to mean something like “allowing the abortion to occur and not taking active steps to impede it,” which occurs any time the government doesn’t criminalize abortion.  (For some debunking of this dubious facilitation/complicity argument, see Marty’s several posts, Mike Dorf’s column, or Judge Millett’s en banc concurrence or panel dissent.)

Texas has its own offering of word salad; the first heading of its argument section presents this case as the one that will answer whether the young women have a “right to an Abortion on Demand.” What does Texas think constitutes an “abortion on demand”?  In this case, it means temporarily releasing a woman from custody so that she can see a doctor and obtain an abortion that she is entitled to receive under state law, and that the government will not pay for.  State law in Texas also requires women to jump through a series of hoops before obtaining an abortion, and the women in Garza (at least Jane Doe, who was in Texas) did not seek an exemption from those requirements. It's hardly easy for them to obtain abortions, much less "on demand." 

Texas also appears to fear that a ruling against the government would “incentivize even more unlawful entries,” as thousands of young women choose to endanger their lives and leave their homes to unlawfully enter the United States in the hope that they will be apprehended by the United States so that they can insist on the United States releasing them from custody to allow them to obtain an abortion.  There is no reason to think that would happen, and Texas provides no reason to think that it would; Plyler v. Doe also rejected the dubious suggestion that requiring Texas to allow undocumented children to enroll in public education would lead to an influx of unauthorized entry. The unfounded fear of persons entering the United States so that they can be apprehended by HHS and obtain an abortion that they will pay for is the extent of Texas’s argument for why a temporary restraining order or preliminary injunction is not in the public interest. 

To sum things up: Texas’s argument has little to recommend it—not the text, not existing precedent, and not the implications of its position. Texas’s argument, however, has managed to attract one vote thus far—Judge Henderson adopted it when the D.C. Circuit decided not to stay an order of the district court.  The other dissenting judges, Judge Kavanaugh and Judge Griffith, wisely chose not to do so.  It's not hard to understand why. 

On The Other Hand….

I will say this about Texas’s position: Texas’s argument more closely tracks the logic behind the policy that’s at issue in Garza.  Texas maintains that the undocumented young women in the case are not “people” (formally, for purposes of the Fifth Amendment).  And that is how ORR is treating them—as beings who are not fit, to decide for themselves, what is in their best interests.  ORR insists that ORR (and let’s be honest, probably just Scott Lloyd), rather than the women themselves, can decide whether it is in the women’s best interests to have an abortion, and whether it would be better for the women to have the abortion earlier (while still formally in ORR’s custody), or later at some indefinite point in the future (while formally in the custody of some yet undiscovered sponsor).  ORR is willing to force these women to delay their abortions, increasing the risks to the women’s health, and also potentially jeopardizing the women’s psychological repose, as they wonder whether they will have to carry their unwanted pregnancies fully to term, and are forced to have later-term abortions. 

The insult to these women’s liberty and dignity is dehumanizing; Texas just made that explicit in its choice of argument.



*It’s not entirely clear from Texas’s brief whether it believes that undocumented persons/persons without legal statutes necessarily lack substantial connections to the United States and thus do not have rights under the Fifth Amendment. For example, on page 2, Texas represents that Doe’s concession “that she has ‘no legal immigration status’” resolves whether she has any Fifth Amendment rights.  If that’s the relevant detail, then Texas’s position is actually that all persons without legal immigration status have no Fifth Amendment rights. It’s also worth clarifying that Doe “has no legal immigration status” in the sense that she has not been granted legal immigration status; some people who have not been granted legal immigration status are eligible for and may ultimately obtain it, including by receiving asylum in the United States. Doe (and some of the other women subject to the ORR policy) may fall into that category, as they fled various forms of violence and persecution in their home countries. But, as I said, Texas’s position is unclear, as it elsewhere frames its rule as whether “unlawfully present aliens with no ties to the United States” have rights under the Fifth Amendment.


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