Bills are moving forward in both houses of Congress which, if approved, would mandate the administrative, extra-judicial revocation, non-renewal, and refusal of issuance of a US passport to any US citizen, even if their citizenship is unquestioned and they have been accused of no crime, but “whom the Secretary [of State] has determined is a member of or is otherwise affiliated with an organization the Secretary has designated as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).”
The proposed legislation would leverage administrative determinations related to immigration (which US courts have allowed to be largely exempted from judicial review insofar as they only affect foreigners who aren’t considered by the US to have the same human rights as US citizens) to impose a categorical ban on certain US citizens leaving or entering the US except at the (standardless, i.e. arbitrary) “discretion” of the Secretary of State.
Since June 1, 2009, US citizens have been forbidden by Federal law and regulations from crossing any border into or out of the US by any means (land, sea, or air) without a passport, passport card, or Federally-approved “enhanced” drivers license. Denial of a passport thus amounts to a categorical ban on leaving or returning to the US. As such, it is a blatant violation of the rights of US citizens pursuant to the First Amendment “right of the people… peaceably to assemble” and their human rights pursuant to Article 12 of the International Covenant on Civil and Political Rights:
2. Everyone shall be free to leave any country, including his own….
4. No one shall be arbitrarily deprived of the right to enter his own country.
The proposed law would not define how, on what basis, according to what procedures, or using what standard of proof the Secretary of State would make determinations as to membership or other “affiliation” of a US citizen with a blacklisted organization. To make matters worse, the bills proposing this travel ban for US citizens associated with blacklisted organizations contain no definition of “member” or “otherwise affiliated”.
If you don’t like the decision of the Secretary of State, the bill would provide you with a “Right of Review” entitling you to a hearing before … the Secretary of State.
Substitute “Communist” for “terrorist” in the proposed legislation, and it becomes clear that these bills would recreate the worst of the guilt-by-association witch-hunting of the MyCarthyist and other Red Scares.
In the House of Representatives, H.R. 425 (the “Passport Revocation Act of 2017), introduced by Rep. Ted Poe of Texas, was reported out of the Subcommittee on Terrorism in July, and is pending before the full Committee on Foreign Affairs. This House bill appears likely to pass the House if it gets to a floor vote: It’s identical to a bill that was approved by the House in 2015 by voice vote after only 15 minutes of debate, but was never taken up by the Senate.
Language identical to the 2015 and 2017 House bills and also labeled as the “Passport Revocation Act” is included as Section 632 of S. 1757, an omnibus “border control” bill that was introduced by Sen. John Cornyn last month. S. 1757 appears to have been quietly fast-tracked: It was sent directly to the Senate floor without committee review or hearings, and this week it was placed on the Senate calendar after its second reading.
More than a month after S. 1757 was introduced, the text of the bill still has not been posted at Congress.gov, which is unusual. There’s been some reporting and analysis, mostly critical, based on leaked drafts of the bill. But we don’t have to speculate or rely on leaks or drafts: The day the bill was filed, Sen. Cornyn’s office posted an official copy of the complete 462-page text.
Much of S. 1757 is devoted to the details of a $10 billion appropriation for fortifying and policing US borders, including money for US Customs and Border Protection infrastructure, surveillance, and personnel. As with most “omnibus” Federal bills, S. 1757 also includes funding for pork-barrel projects (flood control in the Rio Grande Valley, Section 104) and other pet issues (assistance to Mexico for drug crop eradication, Section 112).
But there’s much more: the bill also provides for deploying more National Guard and regular US military troops and other assets to patrol and surveil the borders, and for grants to states for acting as Federal agents in performing these Federal functions. Section 308 of the bill would cut off Federal funds for states or local jurisdictions that decline to have their police, jailers, or other personnel act as Federal agents for the enforcement of Federal immigration laws.
There are also procedural changes in the bill such as provisions to facilitate the deportation of children, including a “one strike and your out” provision in Section 321 of the bill for expedited removal from the US of any non-US citizen under the age of 18 convicted for even a first offense for driving under the influence of alcohol or illegal drugs. And there is a “corruption of blood” provision in Section 502 of the bill, which is prohibited by the US Constitution even for treason and which violates the fundamental principle of personal responsibility and individual judgment, which would purport to deem presumptively inadmissible or removable any spouse or child of a person deemed inadmissible for certain reasons.
The manner in which these activities would be carried out if S. 1727 is enacted into law raises at least as many questions as their purposes.
Sections 102, 113, and and 118 of S. 1757 would exempt “border control” activities carried out pursuant to the bill from a long laundry list of otherwise-applicable Federal bidding, contracting, hiring, and environmental requirements. This would turn Federally-owned lands including national parks in the border regions in which much of the US population lives into national sacrifice areas in which border patrol agents (or the beneficiaries of sole-source no-bid contracts) could, with impunity, pollute the land, air and water; kill and destroy the habitat of endangered species; and trample or trash sacred, historically significant, and archaeological sites and artifacts.
Other provisions of S. 1757 are specifically intended to provide border patrol agents and immigration decision-makers with impunity and authority for arbitrary and unaccountable exercise of discretionary power or, if the Constitution won’t permit complete impunity, to frustrate and minimize the possibility of judicial review.
The phrase, “unreviewable discretion” appears 14 times in the text of the bill in relation to the powers of the Secretary of Homeland Security, the Secretary of State, and/or the Attorney General of the US. Section 552 would make explicit that, “no United States court has jurisdiction to review a decision by the Secretary of Homeland Security to refuse or revoke a visa.” Section 564 would prohibit class actions or injunctions that affect the treatment of anyone other than individually named parties in immigration lawsuits.
The implicit rationale for these provisions seems to be that “border protection” should be treated as a military rather than a law enforcement matter, or at least on a footing of war or martial law in which military concerns takes precedence over any civilian matter. It’s as though the US were at war with the world, all “aliens” were enemies, and that war against those enemies should be fought “by any means necessary” rather than according to the rule of law.
As should be clear from the inclusion of provisions related to passports for US citizens, S. 1757 isn’t just an immigration bill or one that only affects foreigners.
S. 1757 would mandate and/or (purport to) provide statutory authorization for several programs to which we have previously objected. These would include “screening” on the basis of social media identifiers and data of all foreigners entering the US (Section 536) and a new entry/exit tracking system (Section 206) including collection of iris scans and voice prints (Section 205) and DNA (Section 305).
S. 1757 would mandate this entry/exit tracking system for non-US citizens crossing US borders, and is carefully worded so as not to rule out the inclusion of US citizens in some or all aspects of that system including collection of biometric data. We’ve pointed out that as applied to US citizens, both the current biometric entry and exit tracking and the proposals for its expansion violate the Paperwork Reduction Act and the Privacy Act. But in yet more of its provisions to exempt the Department of Homeland Security and the border regions of the US from the rule of law, S. 1757 would exempt these schemes –even as they apply to US citizens — from the Paperwork Reduction Act (Section 703) and the Administrative Procedures Act “and any other law relating to rulemaking, information collection, or publication in the Federal Register” (Section 702), which would include the Privacy Act and the Freedom of Information Act .