The Department of Homeland Security recently decided to bar New York residents from federal programs that allow “trusted travelers” expedited transit through airports and border checkpoints. The Trump administration is defending the decision as a rational response to New York’s enactment of a law denying federal immigration authorities free access to the state’s motor vehicle records. In truth, the department’s decision is spiteful retaliation against people who reside in a state that declines to bend to the administration’s immigration priorities. Whatever its other virtues or vices, the decision offends constitutional norms that are neither liberal nor conservative but simply American.
New York wasted no time in filing a federal suit to block the Department of Homeland Security’s move. The state’s lawsuit raises a number of plausible process-based objections and seeks to take advantage of legal doctrines usually associated with right-leaning judges. But it misses an opportunity to frame the case more fundamentally, in terms of principles grounded in personal responsibility and a refusal to punish people for the sins of others.
New York argues that the department’s move was hasty and arbitrary and imposes unjustified and even irrational pressure on the state to cooperate with federal authorities by sharing data they say they need to protect the nation while facilitating travel. The state’s arguments have some force, but their premises might have limited appeal to judges deferential to executive power in matters involving immigration and allegedly implicating national security. Moreover, federal courts across the ideological spectrum might well sympathize with the administration’s claim that it cannot safely administer the expedited transit programs without access to personal information uniquely available through state motor vehicle records.
The state might fare better with its federalism-based arguments: It objects to the use of national power to influence state lawmaking. Here, New York is armed with the Supreme Court’s 2018 opinion in Murphy v. National Collegiate Athletic Association, which invalidated a federal law flatly prohibiting states from legalizing sports gambling. The court in that case held the federal law to be a forbidden form of federal commandeering of state legislative power.
But it’s far from obvious that the action New York challenges is sufficiently analogous to this or other cases in which the Supreme Court has declared federal legislative provisions unconstitutional because of demands they made on states. No less concerning for progressives, relying upon a line of precedents rooted in states’ rights could solidify recent conservative doctrine in ways that could limit future federal power to enact national policy on vital issues such as climate change or health care reform.
Fortunately, those objecting to the Department of Homeland Security’s decision needn’t invoke controversial legal notions to establish its constitutional flaw. Although constitutional law doesn’t always track ordinary moral intuitions, this is an instance where it does. The most fundamental principles of fairness and due process, principles neither liberal nor conservative, tell us that individuals should never be punished for things they haven’t done — which is precisely what the Department of Homeland Security is doing here.
The Department of Homeland Security is indiscriminately penalizing New York residents — both those directly denied access to expedited transit and those derivatively affected by the attendant economic and social consequences — for the actions of lawmakers in Albany. In so doing, the department violates not just some technical legal doctrine but also an ancient and axiomatic principle undergirding virtually any decent system of laws.
This central, intuitive principle of justice is also firmly rooted in federal constitutional doctrine. Its influence is evident, for example, in Plyler v. Doe, a 1982 case in which the Supreme Court struck down a Texas law denying undocumented children access to the state’s system of free public education. The court in that case reasoned, “Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”
The same logic applies here. Even if the Department of Homeland Security finds it expedient to control the conduct of the New York legislature by acting against its constituents — denying them access to federal programs at airports and border crossings anywhere in the nation simply because of their state residency — doing so clashes with the most basic conceptions of justice.
It might be urged that a state’s residents are not wholly without influence on the lawmakers for whom they vote and who theoretically represent them. But one needn’t be cynical about the workings of representative democracy to recognize the limits of that idea. For one thing, much of the harm the Department of Homeland Security’s rule visits upon those residing in New York is aimed at people ineligible to vote there, either because they’re undocumented immigrants or because they’re green card holders. For another thing, the rule obviously can’t differentiate between those who voted for the lawmakers supporting the state law to which the department objects and those who voted against them. Finally, even those who voted for the legislators responsible for enacting the state law at issue may well have done so for reasons entirely unrelated to information-sharing by the Department of Motor Vehicles.
While we can hope that this example of President Trump’s vindictive post-impeachment behavior may be promptly struck down by our independent federal judiciary, we mustn’t lose sight of this president’s other dangerous acts of retaliation, which may lack readily available judicial remedies. With the ultimate referendum on the president’s lawlessness just 10 months away, citizens should take keen note of just how willing Mr. Trump is to punish anyone who doesn’t loyally embrace his political agenda — and even those who might embrace that agenda but happen to be in his way.
Laurence H. Tribe (@tribelaw) is a professor of constitutional law at Harvard Law School and a co-author, most recently, of “To End a Presidency: The Power of Impeachment.”
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