Archive for the 'Immigration' Category

Understanding California’s Sanctuary State Bill and it’s Impact on Local and Federal Law Enforcement

Last October, Governor Jerry Brown signed Senate Bill 54, or California Values Act, a law that would make California a sanctuary state. The new law went into effect after the New Year arrived. Although the effect and constitutionality of most new laws is often uncertain, California’s Sanctuary State law is actually easier to understand than most:

What Does It Mean to Be a Sanctuary State?

The California Values Act would prohibit California law enforcement agencies from using either personnel or funds to hold, question, or share information about people with federal immigration agencies. The new law provides a number of exceptions, such as conviction of one or more offenses from a list of 800 crimes outlined in the California Trust Act, including child abuse and drug trafficking.

In a non-sanctuary city or state, local police submitted the fingerprints of all persons booked in state or local jails to the federal government. If Immigration and Customs Enforcement (ICE) flagged a person as an illegal immigrant, the federal agency could ask the local jail to hold them until ICE could pick them up for federal detainment.

sanctuary stateUnder California’s new law, local and state police would be barred from submitting any and all fingerprints to ICE or providing any other free range assistance. Local and state police would only be permitted to submit a detainee’s fingerprint if the detainee had previously been convicted of a certain crime.

Are There Any Other Restrictions on California’s Law Enforcement?

Local and state police cannot give federal agents free access to personal information. All law enforcement agencies will be required to produce annual reports on their participation with federal agencies and how many people they transferred to immigration authorities during the year.

What are California Law Enforcement Allowed to Do?

As mentioned earlier, local and state police are still permitted to work with federal immigration efforts if the detainee was previously convicted of a serious crime, such as child abuse. Federal agents are still permitted access to state prisons and jails for the purpose of questioning immigrants. Finally, California cannot prohibit the federal government itself from entering the state and finding illegal immigrants. The sanctuary law only applies to state law enforcement because California only has power over state and local law officers.

Why Would a City or State Provide Sanctuary for Illegal Immigrants/Undocumented Persons?

State and local sanctuary laws would be justified for three different reasons: First, California has authority over its own police officers and can therefore decide whether its officers should work with the federal government or not. Second, state lawmakers believe that this measure would reduce local crime. Illegal immigrants might be hesitant to report crimes to police if they believe they will be deported as a result. Sanctuary laws would provide cover to illegal immigrants to report a robbery in progress or any information they might have about a crime that was committed. Finally, most governments are obsessed with documenting everything. Documenting state interactions with federal agencies might be valuable information for future reference.

What Does This Mean For Illegal Immigrants/Undocumented Persons?

The law would protect the private information of most persons in California if he or she were arrested, since state and local police would be barred from sending it to the federal government without showing the proper cause. Additionally, merely talking to local police would no longer be automatic grounds for deportation. Of course, if the illegal immigrant were convicted of a prior serious crime, the state police would still be permitted to contact ICE or other federal immigration enforcement.

Are Sanctuary Laws Constitutional?

California is currently engaged in numerous lawsuits with the federal government over its sanctuary laws. Most legal experts predict that California would prevail on whether it can prohibit its police from working with the federal government. The Supreme Court has ruled that while the federal government can bribe states into doing what it wants, the federal government cannot force them into taking certain actions.

The Court’s decision on the Affordable Care Act is an example of this: Originally, Obamacare as passed required that states expand their Medicaid coverage. The Supreme Court tweaked the law so that the coverage would be optional rather than mandatory because the federal government did not have to power to force states to accept Medicaid coverage, even if the federal government was paying for the expansion.

Similarly, the federal government cannot require that California (or any other state) work with ICE or other immigration enforcement agencies. A state can choose to cooperate with the federal government if it wants to, but if the state decides to close the door, that’s the state’s decision to make.

What Problems Could the Sanctuary Law Pose In the Future?

ICE has countered by threatening to make more public raids, including in schools and courthouses. The latter would likely raise further constitutional challenges, since such actions would impact a state’s ability to administer its legal system – a severe breach of state sovereignty. California Chief Justice Tani Cantil-Sakauye had previously condemned ICE agents for disrupting state court proceedings by arresting people inside California courthouses. Increased raids would disrupt state courts ability to call witnesses and prosecute crimes unrelated to immigration.

Travel Ban 3.0: Third Time the Charm?

The Supreme Court has granted the federal government’s request to fully enforce the set of restrictions known as the “travel ban” while the Appeals Courts hear the merits of the ban. The Court ruled 7-2 that individuals from eleven countries could be prevented from entering the country. There’s a lot of confusion about how the ban works, what exceptions exist, and the arguments being made. The full order can be found here. Here’s a quick FAQ to break everything down:

Which Countries Are On the List?

Individuals from the following eleven countries are prohibited from entering the United States: Iran, Libya, Yemen, Somalia, Syria, North Korea, Venezuela, and Chad. That means the U.S. will not approve Visas for people traveling on passports from those eleven countries.

Who Does the Ban Apply To?

The third version of the travel ban suspends the following visas:

Chad – Only B-1 business and B-2 tourist visas are suspended. All others, including F and M visas for students and H visas for temporary workers, are not suspended.

Iran – Only F and M student visas and J visitor visas are permitted to enter the country.

Libya – Only B-1 business and B-2 tourist visas are suspended. All others, including F and M student visas and H visas for temporary workers, are not suspended.

North Korea – All entry is suspended.

Syria – All entry is suspended.

travel banVenezuela – The B-1 business and B-2 tourist visas of certain government officials and agencies from Venezuela are suspended.

Yemen – Only B-1 business and B-2 tourist visas are suspended.

Somalia – All entry of immigrants is suspended (immigrants are individuals who intend to permanently reside in the United States).

Are There Any Exclusions or Exceptions?

There is a difference between an exclusion and an exception. An exclusion occurs when the law is written in a way so that the law doesn’t apply to that person. For example, the ban on Chad and Yemen suspends business and visitor visas. Student visas are not included in the suspension. Therefore, students are excluded from Chad and Yemen suspensions.

An exception is when the law does apply to that person, but the law suspends the application to that person. The travel ban currently has the following list of exceptions:

  1. Any lawful permanent resident of the United States.
  2. Any foreign national admitted into the United States who entered between the first and second versions of the travel ban and the current one (paraphrased).
  3. Any foreign national who has a document other than a visa that is valid between the first and second versions of the travel ban and the current one (paraphrased).
  4. Dual citizens traveling on a passport issued by a country not on the travel ban list.
  5. Any foreign national traveling by a diplomatic visa.
  6. Any foreign national granted asylum by the United States or protection by the Convention against Torture, or any refugee already in the United States.

For example: Although business visas from Chad are suspended, a duel citizen of Chad and France could claim an exception to the business visa ban if that person also had a passport issued by France. In contrast, a person holding a student visa from Chad would still be allowed to enter regardless of dual citizenship because that person was excluded from the ban.

What are the Differences between Each Version of the Travel Ban?

The first version, Executive Order 13769, was signed by Mr. Trump on January 27, 2017. It banned individuals from seven different countries, all with Muslim majorities. The ban would have lasted for 90 days for non-refugees and 120 days for refugees from those countries. The ban left a loophole from refugees of “religious minorities.” This version was suspended by federal judges and the administration rescinded the order a few days later.

The second version, Executive Order 13780, was signed in March 16, 2017. This version removed Iraq from the list and dropped the “religious minority” exception, but kept the 90 days non-refugee and 120 day refugee expiration dates. Federal judges suspended this second version until the Supreme Court allowed a partial ban to go into effect on June 26. The Supreme Court added a “bonafide” exception, whereby persons would be allowed to enter the U.S. if they had a genuine and sincere reason to be in the country, including family.

The third travel ban, Proclamation 9645, ended the expiration dates, removed Sudan from the list, and added North Korea and Venezuela. The Supreme Court’s December 4th order allows this version of the ban to go into full effect without the bonafide exception.

Can a District Court Judge Stop an Executive Order Nationwide?

The first two travel bans were enjoined by District Courts in Hawaii and Washington State.  District Court judges who issued the nationwide injunctions, the lowest judges in the federal judiciary, have been criticized for exceeding their powers. It seems absurd that the lowest member of the judicial branch can stop the highest member of the executive branch.

Federal Rule of Civil Procedure 65 gives District Court judges the power to issue preliminary injunctions before trial to ensure that the status quo remains while the case is being heard. There is no restriction as to the scope of the injunctions. The Supreme Court writes the Federal Rules of Civil Procedure subject to Congressional approval. Since neither the Supreme Court nor Congress has seen fit to narrow the scope of the District Court judges’ powers as to injunctions, the judges’ retain the power to issue nationwide injunctions on behalf of the Supreme Court.

The Trump Administration is not the first one to complain about the power of District Court judges. The Obama Administration also filed appeals when judges in the Fifth and Sixth Circuits blocked President Obama’s deferred action programs. The judges in those circuits upheld the District Court judges’ right to issue nationwide injunctions.

As the Fifth and Sixth Circuit Appeals Courts pointed out, it makes sense to issue nationwide injunctions in immigration cases. If the injunction were merely limited to the state in which the District Court sits or to the Circuit Court hearing the case, the immigrant could simply choose a different state or circuit to go to. Since immigration is a national issue and one of the parties is usually the federal government, a nationwide injunction would preserve uniformity of federal immigration law. The federal immigration policy of Hawaii cannot be different from the federal immigration policy of Texas or New York. Nation-wide injunctions are the only way District Courts can preserve the status quo without creating different federal immigration policies for different states.

So is the Travel Ban Constitutional Now?

Although the Supreme Court has lifted the lower court’s ban on the travel ban, the Court has yet to rule on its constitutionality. Given that the decision to lift the injunctions was a 7-2 decision, the ban does stand a decent chance of surviving. However, both the Ninth Circuit and the Fourth Circuit need to hear arguments and render separate rulings before the Supreme Court will hear arguments. If the Supreme Court decides to hear the case, a final ruling on the travel ban will likely come out in middle to late 2018.

Teenage Illegal Alien Right’s to an Abortion: The ACLU’s Lawsuit

A lawsuit over a 17-year-old illegal immigrant’s right to get an abortion has seen many twists and turns since it was brought by the ACLU a little over a month ago–the most recent of which happened only days ago. The girl in question, known only as Jane Doe in court documents, was caught crossing the border in September and learned shortly after while at an immigration detention center specifically for illegal alien minors that she was pregnant. She did not want to carry her pregnancy to term however, following Trump administration policies, the detention center refused. They instead took her to religious counseling sessions to convince her not to get an abortion and to a clinic to get ultrasounds of the fetus which they then showed to her.

All this is part of a policy implemented in March requiring approval from the U.S. Office of Refugee Resettlement before a shelter can release a non-citizen minor to get an abortion or abortion-related service. The director of this office, Scott Lloyd, has long been outspoken in his condemnation of abortion and women who get abortions. He has made public announcements, in the wake of the policy, that he would allow no abortions whatsoever for and only allow release for “pregnancy services and life-affirming options counseling.” Texas officials have made it clear that they also will allow no abortions.

Under Texas law, a minor requires either parental approval or court approval before receiving an abortion. However, even after receiving court approval to get an abortion, the shelter Jane Doe was staying at refused to take her to a clinic where she could get an abortion. After this, the ACLU brought a lawsuit on behalf of Jane Doe to secure her right to an abortion and challenge the policy itself.

This is a matter that has seen very little litigation, so there were quite a few eyes on the case ruling. Just weeks ago, the court ruled on the issue in favor of the ACLU–leading to a twist in the case before an appeal was brought. Let’s look at the lawsuit, the ruling and this most recent twist in order to understand what this case means for the rights of illegal aliens to an abortion.

The ACLU Lawsuit

As we discussed earlier this week, illegal aliens have quite a few constitutional rights including 1st, 4th, 5th, and Equal Protection Act protections. This, along with the obligations of the government to take care of unaccompanied minor illegal aliens–an obligation which the government has recently been found in breach of–formed the cornerstone of the ACLU’s case.

The ACLU argued that the policy violated First and Fifth amendment rights by forcing these minors to receive approval before gaining access to an abortion–something far beyond the usual constitutional protections granted to citizens under the law. This is especially true because the policy provides no explicit exceptions, even for victims of rape. They argued that this, along with forcing minors to attend religious counseling discouraging abortions and requiring them to get approval from either parents or a sponsor before getting an abortion, violated the Fifth Amendment right to privacy. They argued they violated the First Amendment by compelling unaccompanied immigrant minors to discuss their decisions to have abortions. The lawsuit also alleged that requiring religious counseling violated the Establishment Clause of the First Amendment.

ACLUThe Flores agreement  is a government agreement which requires the government to provide care for unaccompanied illegal alien minors up to a certain minimum standard. This includes a requirement to provide medical care, specifically including family planning services and emergency health care services. The lawsuit argued that the government policy did not live up to these obligations.

The District Court’s Ruling

The federal district court sided with the ACLU, signing an order allowing Jane Doe to receive an abortion. The judge in the case called both the shelter’s actions and the policy itself “shocking” and “unconstitutional.”

To make the ruling simple, the decision essentially came down to the court stating that it is well established as unconstitutional to outright deny access to abortion–whether it is applied to a citizen or an illegal alien. By following the state rules of Texas when it comes to receiving an abortion, Jane Doe had the equal protection of the law and was constitutionally allowed to receive an abortion.

The order required the shelter to “promptly and without delay” transport Jane Doe to the nearest abortion clinic and allow her to obtain an abortion.  It is important to note however that the order does not yet extend to challenging the policy.

The Case Takes a Twist

The government refused to comply with the court’s order, and appealed the case. However, the appeals court supported the lower court ruling–although they delayed the abortion slightly to seek a sponsor for Jane Doe. This delay was potentially a serious issue for Jane Doe. Texas law does not allow nearly any abortions after 20 weeks of pregnancy, at 15.5 weeks Jane Doe was nearing the point where the case would become moot.

Even after this, the government made it clear that they would take the case all the way to the Supreme Court. They argued that there is no established constitutional right to an abortion while in federal custody. They also interpreted the rules of the Flores agreement to require the care of all minors in their custody–including unborn fetus’ such as Jane Doe’s. This is an interpretation supported by no case law. In fact, the rulings on the status of a fetus two months into a pregnancy tend to go the other way.

However, here came the twist. Before the government made any further filing to seek a stay on the court’s order requiring them to allow an abortion, the ACLU moved up Jane Doe’s clinic appointment, changed it from a counseling appointment to an actual abortion, and Jane Doe got the abortion she wanted.

As mentioned above, Texas law does not allow nearly any abortions after 20 weeks of pregnancy, so the clock was ticking for Jane Doe. However, the government has taken affront to the ACLU’s actions. While the ACLU argues they were under no obligation to wait for the government to decide to act while Jane Doe ran out of time, the government has sought sanctions against the ACLU lawyers and argue that the lower court ruling should be vacated due to their actions.

The Case Moving Forward

Jane Doe got her abortion. In a statement afterword she said that nobody should be shamed for making the right decision for themselves. However, the case is not over. There has been no movement on the government’s requests as of now. What’s more, and most importantly, the central question of the case has not been thoroughly addressed.

These ruling imply that, at minimum, non-citizens have a right to the same protections of state abortion laws the same as citizens would have. However, the exact outlines of these rights have not been fully explored–the rulings in this case are rather brief. The ACLU will continue its battle against the policy of the Trump administration regarding illegal alien abortions. It seems quite likely that the question will eventually reach the Supreme Court as many are discussing the case as the largest abortion case since Trump took office. Jane Doe is also not the only plaintiff in the ACLU’s case, it was brought on behalf of all similarly situated people. This is not the last we will hear of this case or this issue. As of now, the trends say that non-citizens have the same rights to an abortion as anybody else.

Teenage Illegal Alien’s Right to an Abortion: Understanding Constitutional Rights of Non-Citizens

A 17-year old girl who realized she was pregnant while being held in an immigration detention center in has found herself at the center of an ongoing lawsuit over her right to get an abortion as an illegal immigrant. The girl is unnamed, known only as Jane Doe in all the documents associated with her. She was pregnant when she was originally caught, by herself, crossing the border in September. However, she did not realize she was pregnant until she was being held in a Texas shelter.

We’ve talked before about the shelters the government is required to provide to unaccompanied minors held for potential deportation, and the governments failures when it comes to providing basic necessities in these shelters. However, the government was denying something else this time–access to an abortion. Jane Doe had made it clear that she did not want to carry her pregnancy to term, but was repeatedly denied requests to leave the shelter to go to a clinic and get an abortion. In the meantime, she was instead taken from the shelter to–without her request–to attend religious counseling sessions to convince her not to get an abortion and to a clinic to get ultrasounds to show her sonograms of the fetus. As the timer for an abortion was obviously ticking down, eventually the ACLU was forced to bring a lawsuit on behalf to enforce her rights to an abortion.

This lawsuit is an interesting way to analyze a not well resolved issue of law: the rights of non-citizens to an abortion while in the U.S. However, it is worth first addressing the constitutional rights of non-citizens and illegal aliens in the U.S. Despite a bit of a misinformation campaign to the contrary, non-citizens inside the U.S. do have constitutional rights–end of story. But to explore both the lawsuit and the rights of non-citizens in general, we’re going to do a two-part article. This article will address non-citizen constitutional rights and the next one will deal with Jane Doe’s lawsuit itself.

abortionConstitutional Rights of Illegal Aliens

Right off the bat, illegal aliens have constitutional rights. Despite a great deal of information on the internet trumpeting that they do not, they do. Before you leave a comment on this article, they do. Seriously. Not only do they have constitutional rights, but the fact that they have these rights has been settled for over a century.  The issue has been settled since 1886.

The first cases addressing the issue all dealt with Chinese immigrants, primarily here as non-citizens working on the railroads. In three cases–in 1886, 1896, and 1903–it was firmly established that so long as you are within U.S. territory you have at least some constitutional rights regardless of your citizenship status or whether you are here legally or illegally. These non-citizens were ruled all the way back then to have 14th Amendment Equal Protection rights as well as the due process protections of the 5th and 6th Amendments.

The lynchpin of these rulings rested on the words of the Constitution of the United States: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” You notice that the first section of that quote says “citizen” while the rest of the sections simply say “person.” This is an important distinction; some rights are indeed generally reserved for citizens but due process and equal protection of law is guaranteed to any person in the United States. The Supreme Court has consistently stuck to this interpretation of the Constitution.

In 2001, they ruled once again that the 14th Amendment applies to all aliens–legal or illegal. Two decades earlier, they ruled against Texas preventing illegal alien children from attending grade school on Constitutional Equal Protection grounds. To make a complicated issue short, states cannot deny to anybody in their jurisdiction–including illegal aliens–equal protection under their laws.

The Supreme Court has, at least in the criminal context, also extended the protections of the First and Fourth Amendment. This includes rights such as search and seizure protections, a right against self incrimination, and political freedoms of speech and association.

Situations Where Non-Citizens Have Very Little Rights

While illegal aliens do have Constitutional rights, the federal government has an extremely broad discretion in how to treat these non-citizens–immigration proceedings. The Supreme Court has long established that immigration law is the realm of the fed and these proceeding are essentially an administrative matter above judicial review.

Immigration is treated as a national security and foreign policy matter–firmly in the realm of Congress. This means Congress can do things that might be constitutionally unacceptable if they were dealing with citizens; if only in the context of immigration and deportation proceedings. This power is further supported by the nature of immigration proceedings as administrative as opposed to criminal hearings–you don’t go to jail you just get deported.

When the Supreme Court upheld this in 1952, they did so in the context of Congress’ right to expel noncitizens who were former communists. However, they also made it clear what the message behind the ruling was, saying “In recognizing this power and this responsibility of Congress, one does not in the remotest degree align oneself with fears unworthy of the American spirit or with hostility to the bracing air of the free spirit…One merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this Court.”

What Do the Constitutional Rights of Non-Citizens Mean in the Abortion Context?

Non-citizens and illegal aliens have constitutional rights and, generally, enjoy protection of state law equal to that of a citizen. Depending on the state an illegal alien lives in, these rights are occasionally expanded by state law. While California likely offers the most additional protections, many states offer things such as in-state tuition, driver’s licenses, healthcare, and more. If somebody tells you non-citizens do not have constitutional rights or are not protected by the law, they are incorrect.

But before Jane Doe’s case there had never been a case specifically ruling on the constitutional rights of non-citizens to an abortion. Obviously there are a great deal of protections for citizen women seeking an abortion, although some might argue these protections are not enough. However, no court had ruled on the specific issue. Non-citizens enjoy equal protection of the law, but how does that apply when it comes to the law on abortion? Later this week we’ll look at Jane Doe’s case and find out.

A Scarlet Letter: Sex Offender Status to Be Put on Passports

Over a year since the law was passed the State Department has begun enforcing provisions of the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders–more colloquially known as the International Megan’s Law or H.R. 515–requiring the passports of registered sex offenders convicted of sex offenses involving a minor to bear a notice saying, “the bearer was convicted of a sex offense against a minor.”

The International Megan’s Law was introduced back in 2015 and signed into law by former-President Obama on February 2nd, 2016. There are many provisions of the law, however the relevant ones here require sex offenders whose crime involves a minor to bear passports including the above discussed notice. The law also requires offenders to give law enforcement 21 days notice before travelling out of the country.

sex offenderThe law has obviously been in effect for over a year, but as of a few days ago the State Department will begin revoking the existing passports of covered sex offenders and requiring them to apply for new passports bearing the notice. The goal of this law is to target and eliminate sex tourism, a serious issue. According to the State Department, the passport notice and provisions of the law will not prevent a sex offender from leaving the country altogether or affect the validity of their passports in any way–although they do acknowledge that other countries may take a different approach.

Despite these reassurances, there have been some who have raised questions about the legality of these provisions. An organization known as California Reform Sex Offender Laws brought a lawsuit almost immediately after the law was passed. The right to travel freely is often discussed as a fundamental human right, so the concerns are not completely meritless. However, the goal of eliminating sex tourism is hard to argue with. To better understand the situation, let’s look at the original Megan’s Law, the International Megan’s Law, and the resolution of the lawsuit brought against the law.

The Original Megan’s Law

Megan’s Law is fairly well known, but for those unfamiliar it is the informal name for the laws creating the public registry of sex offenders. In the wake of the horrific rape and murder of a young girl named Megan Kanka, states across the nation created laws requiring registration after somebody is convicted. The laws vary a bit from state to state in terms of what information is publically available, what offenses require registration if convicted, requirements placed on registered offenders etc. Some common information that is publically available includes names, pictures, addresses, conviction/incarceration dates, and the type of crime they were convicted of.

The laws have occasionally faced challenges and criticism. These criticisms usually trend towards the laws either being overly restrictive or overbroad in who is required to register. For example, public urination is an offense that often requires registration. Another common criticism is that the laws tend to paint with broad strokes in terms of making little to moderate distinctions between types of offenses. Regardless of these criticisms, the laws have consistently been supported in the courts.

Potential Issues with The International Megan’s Law

The International Megan’s Law has a great deal more elements than the passport provisions discussed above. For example, in addition to the passport provisions, the law allows the U.S. to notify destination countries if an offender is travelling to their country. Stopping sex tourism is hard to argue with, especially when the provisions are exclusively targeted at sex offenders with crimes involving minors. However, this has certainly not stopped critics from commenting on the law. Surprisingly, not everything these critics say is necessarily completely off the mark.

As mentioned, the law was created to stymie sex tourism and child sex trafficking. When originally passed, representatives made it clear that no one law could totally stop these issues but argued that every step towards eliminating them was an important one. However, critics have pointed out that the issue targeted may have been more of a talking point than a realistic problem. In a five-year period, there were only three convictions for sexual offenses overseas out of the over 800,000 registered sex offenders in the U.S. today. What’s more, statistics do seem to show than the percentage of registered offenders who commit similar crimes again is very low–in the realm of 3%. The critics argue that the new passports are a sort of “Scarlett Letter” singling out registered offenders even more than before and that the law does not address a problem as widespread as Congress suggested or effectively deal with sex tourism. These criticisms led to the lawsuit discussed above from the California Reform Sex Offenders Laws.

The Arguments of the Lawsuit

The lawsuit primarily focused on how much the laws could limit travel and how potentially overbroad the provisions were–including those convicted of crimes such as sexting or public urination. The plaintiffs in the case included several people who specifically highlighted this potential over breadth and would need special passports–a man whose conviction had been expunged, a man sentenced to only probation and not required to register because his crime was particularly minor, and a man convicted 25 years ago. At least one of these three was required to routinely travel to China for work, so the passport requirement hit him particularly close to home. The lawsuit argued that the law was unconstitutional because it compelled speech in violation of the First Amendment, retroactively punishes people (generally a legal no-no), denied them equal protection of the law and denied them the right to legal process in defending their passports. The court in question did not buy any of these arguments and dismissed the case in September of 2016.

The judge ruled that the lawsuit, brought before passport provisions had taken effect, had no actual injury but only a speculative one–an actual injury is required for standing to challenge a law. However, the judge still took the time to rule that despite not having standing the case would have lost anyway. Government speech, such as the contents of a passport or driver’s license, is not protected by the First Amendment. Court’s have long held that registration of sex offenders–no matter how substantial or far reaching the impact on a registrant’s life–don’t implicate retroactive punishment issues as they are not punitive measures. The judge also ruled that the registrants already got their due process–when they were first convicted of the crime they had to register for. Finally, she ruled that there was no constitutionally protected class that was targeted by the law and that it only required a rational basis–the least rigorous constitutionality test–to be considered constitutional. The judge said that the International Megan’s Law met this test.

Law Potentially More Effective Than Anticipated

As of now, the International Megan’s Law and its passport provisions are constitutional. However, with the passport provisions taking effect there is an actual harm that may give a lawsuit standing to challenge the law and the district court ruling on the matter. But, it looks like the provisions are here to stay. What’s more, it looks like they are having an effect.

The author of the law has said Thailand has expressed gratitude for the passage of the International Megan’s Law. Apparently, over 160 convicted sex offenders have been caught trying to enter the country.  It is not clear whether these offenders were entering for the purposes of sex tourism, but Thailand has an unfortunate reputation as destination for this sort of activity. Ultimately, it’s hard to argue against any step designed to reduce such heinous behavior. It is certainly crucially important to protect the constitutional rights of all–including those who have been convicted of a crime. The arguments that the potential benefits of the law could be outweighed by the harm they do isn’t one to dismiss out of hand. However, for now the International Megan’s Law is a constitutional law protecting children across the world.