Post-9/11 Anti-Terrorism Policy regarding Noncitizens and the Constitutional Idea of Equal Protection under the Laws*

By Cohen, Daniel H. | Texas Law Review, May 2010 | Go to article overview

Post-9/11 Anti-Terrorism Policy regarding Noncitizens and the Constitutional Idea of Equal Protection under the Laws*


Cohen, Daniel H., Texas Law Review


If you don't stick to your values when they're being tested, they're not values; they're hobbies.

- Jon Stewart1

I. Introduction

The Bush Administration frequently justified its policies by arguing that September 1 1th changed everything.2 To be sure, the terrorist attacks on the United States commanded a great deal of attention and brought concern for national security to the fore of both the government's policy-making agenda and America's shared consciousness. Against the psychological backdrop of the smoking Twin Towers, the country plunged headlong into two wars,3 enacted sweeping legislation aimed at securing the homeland,4 reorganized the government's administrative landscape,5 and constructed an apparatus for detaining individuals who might pose a prospective threat to Americans' safety.6 As this Note will detail, many of the policy changes that were made in response to the September 1 1th attacks affected noncitizens far more adversely than they did citizens. The primary focus of this Note will be to examine post-9/1 1 law as it pertains to noncitizens and comment on what these laws-and their reception in the legal world - say about the constitutional principle of equal protection: namely, that it carries relatively little weight.

The laws and policies of a democratic government necessarily reflect the values ofthat society. Accordingly, because the Constitution is the foundational legal document of the United States, it should embody the country's most deeply felt societal beliefs. As such, because the notion of equal protection is enshrined in the Constitution,7 it might be expected that the United States places a high value on equality. Of course, before the Fourteenth Amendment was ratified, Thomas Jefferson famously invoked equality as a primary justification for American independence.8 And since then the mantra of equality as an important American ideal has been taken up time and time again throughout the country's history.9 However, the national-security-related policies, statutes, and case law adopted since September 11th that treat citizens differently from noncitizens betray a marked lack of commitment to equality norms. This differential treatment cannot even meaningfully be justified on national-security grounds, suggesting that America's professed devotion to equality rings hollow. Perhaps, then, with respect to the sanctity of the Equal Protection Clause and its broader meaning to the country, September 11th did not change anything. Rather, our response to the attacks simply serves to highlight the relative lack of importance placed on the constitutional principle of equality.

This Note will proceed in five substantive Parts. Part II will argue that there are some constitutional norms held in the highest regard, using Philip Bobbitt's Constitutional Fate as a jumping-off point for examining Supreme Court decisions that craft awkward doctrine in order to preserve certain constitutional ideals. These cases and norms will serve as points of contrast to the discussion of equal protection later in the Note. Part III will outline equal protection doctrine and theory in general, serving as the backdrop against which post- 9/1 1 policy pertaining to noncitizens will be viewed in Part IV. Part V will examine those policies' constitutional merits under the Equal Protection Clause, focusing on the structure of the Fourteenth Amendment and its ratification history. And that Part will propose that Fourteenth Amendment jurisprudence in the context of anti-terrorism policies demonstrates a stark contrast between the Equal Protection Clause and material addressed in Part II. Accordingly, Part V will argue that the post-9/1 1 noncitizen experience casts a negative light on equal protection norms, showing that the notion of equality might not be as important an ideal as it is often claimed to be. Part VI will take a second look at particular terrorism policies and argue that they do not even appear to be "reasonable" in any meaningful sense. …

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