If you're on US soil you're subject to US law, including all provisions of the Constitution. And the Constitution makes a distinction between 'citizens' and 'people' (i.e., everybody, including noncitizens)
Aside from all the arguments brought up so far, there's that word "unreasonable" which the courts have historically interpreted with an "expectation of privacy" standard. You have a high expectation of privacy when you're in your house, somewhat less when you're in a car, and much less when you're entering an airport or crossing a border.
In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws. If customs couldn't do this, then importation laws would have no teeth, which is clearly not the intention of the constitution, which gives Congress the explicit power to enact and enforce them.
CBP argues that their smartphone and laptop searches were just an extension of that old custom, the court disagreed, ruling that a smartphone or laptop is fundamentally different from a ship's log or traveler's trunk, such that a higher expectation of privacy exists.
You rightfully argue that lowering protection boundaries was necessary to uphold the law. The same logic can be applied in reverse though - there is no practical need to smuggle data into the country on a physical device nowadays, so why search devices?
Your examples of searching cargo aren't comparable though. The closest analog version to phone or computer searches would probably be searching an individual's private papers, personal journal, and list of contacts.
Are you sure? The GP post seemed to be using the comparison to explain why these types of searches are in fact in line with historic border & import practices because those historic practices could include a search of cargo, luggage, etc. It certainly appeared that post was attempting a direct comparison.
No, I read that, but the author presented a viewpoint from the historic example of luggage, cargo, etc. searches and then simply stated the courts disagreed. Expanding on that to talk about why those things are in fact different and not comparable is a salient point, and not something that a reader of the GP comment would necessarily come away with otherwise.
Because the reasons are fairly obvious to everyone here. Smartphones are basically an extension of our brains. They are our eyes, ears, mouths, and memories. Searching a smartphone (and usually copying its contents) is an invasion of privacy far beyond flipping though a ship log or traveler's diary, so that precedent isn't good enough to establish reasonableness.
Yeah, and there was a constitutional amendment that changed that. There is no constitutional amendment that removes the word "unreasonable" from the 4th. CBP's argument is that these searches are reasonable, given the reduced expectation of privacy.
Eh, I don't like these types of searches, but your argument from slavery doesn't really hold either. If it did, then any law that coexisted with slavery could be rendered equally invalid: "It was routine to imprison people for robbing banks... Yes, but it was also routine for people to own each other, so..." and so on.
Looking at how a law has been implemented in the past is a basic legal principle. The reason for it is to provide context as to the intent and proper way to interpret a law, in order to ensure continuity and consistency in it's application. The idea is that, all other factors being equal, continuity and consistency are desirable.
Though it is also a basic legal principal to determine if the circumstances that gave rise to a law are still in effect, and if not the law may be rendered moot. So much so that laws that haven't been enforced for an extended period of time can be challenged & overturned on exactly that basis if someone suddenly finds themselves on the wrong side of such a law. I'm just making that distinction though; In this particular case, there is still a continued interest in controlling what enters & leaves the country. The specific issue with this court case revolves around whether personal electronics are truly comparable to items that have traditionally been subject to searches. The court says no, they are not comparable, which seems to make sense: Such devices are less like cargo or luggage and more like personal papers, journal, etc.
> In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws
Yes, but electronic devices can't digitally contain physical substances that might be subject to customs laws. It's not comparable. It's probably still today reasonable to search ships in the harbor and passengers for physical substances (like banned animals or fruits/vegetables), but it's not obvious to me how searching electronic devices achieves any reasonable objective related to customs law.
Evidence of the four horsemen[1]. Child porn, terrorism, drugs, and the all-encompassing "organized crime" — which can include money laundering, which in turn can mean having enough money the government wants to steal it.
Of course not, but there is a degree of proportionality here. In theory a person's personal diary, letters, chequebook etc could contain evidence of crimes. However it's generally not been considered appropriate to read through them during a customs search.
The rights granted under the constitution were provided explicitly under the knowing assumption that they could be used to conceal actual crimes or criminal intent. That's the point of them needing protection from the authorities. The mere possibility of committing a crime isn't enough grounds to invade a person's privacy to that degree. You need actual reason to suspect it in an individual case to go that far.
I'm not sure about the legal justification, but I don't think that is true in practice. For example a tourist or someone on an expired visa (edit: or an unexpired but non-immigrant visa) doesn't have the same 2A rights as a US citizen or permanent resident.
> For example a tourist or someone on an expired visa (edit: or an unexpired but non-immigrant visa) doesn't have the same 2A rights as a US citizen or permanent resident.
AFAICT, that’s the practical effect of a holding of an single intermediate appellate court this year on an issue that while important on its own was kind of a side issue in a campaign finance case, and the rationale seems a bit wobbly; and it's logic actually assumes as a starting point hat non-immigrant visa holders having the same 2A rights as everyone else.
While it is for the moment binding precedent within the 9th Circuit, I wouldn't draw any broad generalizations from it, or, even, assume it will hold up on the future.
I think that ruling flies in the face of the Constitution, there's no exception that I can find in "the right of the people" that says non-citizens don't qualify.
There are a variety of federal laws that codify that as well, and I think they're all unconstitutional also.
There was a recent court case about this (Rehaif v. U.S) where the Supreme Court made a decision about the law making it a felony to knowingly possess a gun in the US while here illegally. The prosecutor said "knowingly" just refers to the gun possession, but Rehaif's lawyer said it should refer to knowingly possessing the gun and knowing that you weren't in the country legally (Rehaif claimed that he hadn't read an email saying his student visa was revoked before he rented a gun at a shooting range). The Supreme Court said that "knowingly" referred to both the possession and the legality of one's presence. Presumably that means they're OK with a law that discriminates against some non-citizens on US soil.
Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license). Even if he hadn't lost his visa he'd still be breaking a different law. It's illegal for people visiting with tourist visas to go to shooting ranges, but for tourists visiting from countries that don't require visas it's OK.
> Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license).
Huh; do you have a citation for this? I used to bring scientists from other countries to the shooting range for the cultural experience, and almost brought a pal from Europe hunting a year or two ago (on my license). Never realized I might have been putting them in legal jeopardy.
No, it's federal law that includes among it's explicit exemptions possession of a valid state hunting license. The law has not been much litigated, though the Ninth Circuit upheld it earlier this year in a case that was mostly a campaign finance crimes case but also involved gun possession by the foreign, non-immigrant defendant.
The grant-parent said "children of _illegal_ immigrants" and the parent is talking about "children of _Green card holders_". Green card holders are those who have immigrated legally.
The question of the thread is to what extent non-citizens have particular rights. Parents cite two distinct yet substantially similar groups of non-citizens (one presumes that children don't have much agency with respect to the circumstances of their immigration). Both examples argue in the same direction on the question of the thread, so why does this distinction matter?
It doesn't require public education, but it restricts discrimination if it is provided by the state, as all states do. So, yes, it is a Constitutional issue.
No part of the Constitution entirely forbids discrimination on any basis, but the part that is held to limit state discrimination on that basis is—as limits state discrimination on every basis—the equal protection clause of the 14th Amendment.
Only because the Supreme Court decided in 5-to-4 decision that the states don't have a "substantial state interest" that would allow them to deny it. See Plyler v. Doe.
Which is to say, the constitutional rights of non-citizens are hardly as obvious as they are for citizens.
This follows logically, in my opinion, from the idea that the federal government is solely responsible for matters of immigration law. You don't want to create a patchwork of different rules in different states based on presence granted and retracted at the sole discretion of the federal government. Once you're on US soil, you're largely treated the same as anyone else on US soil (or at least through the same framework), and that makes sense. If you should be removed, that's up to the Feds. To the extent you're not, you should be treated consistently.
You are of course correct that the rules do not apply evenly for immigrants and nonimmigrants, especially since nonimmigrants convicted of a crime are largely seen out as soon as their sentence is served. The same isn't true of immigrants.
This follows logically, in my opinion, from the idea that the federal government is solely responsible for matters of immigration law.
This argument makes sense, but I think it proves too much: states already have plenty of laws that restrict certain rights or privileges to citizens only. Your argument, as I understand it, is that since immigration status is a matter of federal law, states cannot deny a right (to K-12 education) on the basis of immigration status -- but it is commonly accepted that they can and do deny such a right in other circumstances, e.g. to serve as a police officer, for example, which I'm quite sure state laws deny to illegal immigrants.
are largely seen out as soon as their sentence is served
Some years ago (as I remember this) it was allowed to deport any non-citizen who had committed a crime that could lead to a year or more incarceration - is that no longer the case?
It's true in practice in a lot of places. In some places, persons without ironclad immigration status can be hassled out of enjoying public services with spitefully racist levels of bureaucratic process. It is similar to how same-sex marriages were denied after being declared legal by county clerks that refused to issue the documents that record their marriage publicly. The kids aren't denied public education, per se, but they certainly cannot get the same education experience as citizens and legal residents get. No electives. No extracurriculars. No field trips. No cafeteria payment accounts. All those things require the proper forms, and proof of residency, you see.
As a bonus (malus?), the very same malicious process can be used against kids of homeless parents.
I disagree that it is true in practice, because the government can get away with claiming that not treating everyone on US soil equally is OK in the interest of public safety.
And every citizen and immigrant who intends to become a citizen man (and women in the Guard) at least 17 years of age and under 45 is a member of the Militia of the United States[1].
But for the purpose of militia in this context and therefore that of the 2nd amendment, the power of Congress over the militia is deemed "unlimited" [0]. As such, regulating it's use of arms would be well within it's remit.
... as long as such regulation does not infringe the right of the people to keep or bear arms for all the purposes envisioned by the constitutional framers.
The purposes of the framers appears to be a well regulated militia, and that militia subject to "unlimited" control by congress. I agree this would mean congress could not dismantle or subvert the purpose of the militia, but having tight controls over the weaponry at their disposal when not in a state of current or imminent battle would not seem to so undermine it. After all, even the professional military have much, much more tightly controlled access to & tracking of firearms than is imposed in civil society. It is hard to credit an argument that would say militia could not reasonably & constitutionally mirror those same controls.
In colonial era English language, well regulated refers to something being properly functioning, ie in working order. It has nothing to do with regulations.
If you look at the founders’ documents and writings on the subject, “well regulated” isn’t about “regulations,” but about the “proper functioning thereof, as the parent said. There is plenty written about the right to bear arms from that time period by those that wrote the constitution. Words do mean things and those meanings can’t be interpreted without historical context. The purpose of the 2nd Amendment is to protect against a tyrannical government — it’s illogical that the regulation by a potential tyrannical government was intended by the Constitution; it’s the fox regulating the henhouse.
How does a paramilitary organization "properly function" without regulations?
There's obviously a middle ground where regulation is allowed. There's no world where artillery, or arming the insane isn't acceptable in a civilized society. Conversely, the overreach of prohibition of arms in places like DC or NYC is not in alignment with the ideals of nation.
To me, the notion of armed civil insurrection against a modern state apparatus is absurd, and has been since the late 19th century. Civil disobedience and disruptive protest, including protest that undermines control of the armed forces, is the only check on the state's ability to wield force. Even a 3rd rate army is able to control civil unrest.
A: Soldiers were trained to follow rules (aka regulations) and obey. Line up shoulder to shoulder and fire 3-5 volleys a minute in a prescribed manner. A rabble would get 1-2 off and die.
The phrase "well-regulated" is an idiom that means something like "working as expected, calibrated correctly, normal, regular". You can't interpret an idiom literally based solely on the words that it's made from - idioms have their own independent meaning.
The following source gives examples from the Oxford English Dictionary of how the idiom was used from 1709 through 1894, demonstrating how the idiom 'well-regulated' has meaning beyond 'regulations' i.e. laws.
> 1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."
> 1714: "The practice of all well-regulated courts of justice in the world."
> 1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."
> 1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."
> 1862: "It appeared to her well-regulated mind, like a clandestine proceeding."
> 1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."
The sense of the term above is something like 'normal', 'well-ordered', 'regular'. Indeed the word 'regular' also shares the same origin as the word 'regulations', yet its common meanings are unrelated to the concept of regulations.
Parsing the 2nd Amendment, the US Supreme Court wrote that "the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training", and elaborated (quoting another scholar, Thomas Cooley):
> The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”
The phrase "a well-regulated militia" in this context consequently means a militia that's learned, proficient, and effective in firearm use. In any case, what we're discussing is the preface of the amendment, which announces a purpose for the amendment and does not limit it. As the court wrote:
> The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
> Parsing the 2nd Amendment, the US Supreme Court wrote that "the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training":
The military calls rules that impose proper discipline and training "regulations". Such as Army Regulation 670-1, which states “While in uniform, personnel will not place their hands in their pockets, except momentarily to place or retrieve objects.”
The word "regulation" is perfectly compatible with the "well-regulated" idiom.
If it really is the case that the law is written in the form of an idiom then maybe we shouldn't be taking it as gospel and let it grant people right to individually own a weapon capable of murdering numerous people. I mean, if we really are going to say that the second amendment grants such rights then it's not too much to ask that it be explicit. The fact that it's not explicit is a good basis to interpret the phrase loosely and assume that the founding fathers did not envision the gun madness of today.
I agree with you - laws should be written in as plain, simple, and timeless language as possible. Idioms are something that I'd try to avoid if I was writing laws today. However, in this instance, the operative clause of the amendment is clear:
the right of the people to keep and bear Arms shall not be infringed.
We can also understand the meaning of the amendment by examining the intentions, motivations, and beliefs of the people who wrote it -- what they were trying to achieve by doing so. There is extensive legislative history on this subject, which makes it clear that the founders believed that individual firearm ownership was an important and necessary preexisting right. The Supreme Court ruling that I've referenced goes into this history:
> By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” and “the right of having and using arms for self-preservation and defence,”. Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.
> And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”
> There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, (...) [citations omitted]
In the 1700s, the word "regulated" meant "in good working order." It did not have the association with law that we have now. You can look into the history, but if you don't care to, consider that "regulations" (as we've described them over the past few centuries) are a form of law found in modern bureaucracies.
That clause simply provides one important reason why "the right of the people to keep and bear Arms shall not be infringed". It's not a limitation or restriction on that right. For more an extensive deep-dive on the meaning of this amendment, see District of Columbia v. Heller, 554 U.S. 570 (2008): https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...
> ... the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. ...
> Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia — if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny ...
> Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: (...)
> “It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. (...) The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”
It's a summary of the court's opinion and reasoning (and dissenting opinion) in the https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller supreme court case, as to the constitutionality of DC's handgun restrictions at the time, in light of the second amendment. Worth a listen if you've any interest in how we regulate gun ownership, IMO.
Except travelers are not "on us soil" until granted entry by customs. Customs could just deny entry if foreign travelers won't voluntarily consent to search.
The last time I so much as questioned an american customs agent about something they asked me to do, I was interrogated for 2 hours about my life, job, friends, family, phone searched, car flipped through, etc.
They even had 2 canine units circle my car and jump in and out of it at least 10 times each.
Some people get off on power, and this job is as close to having power over people as some can get.
As long as you know you're not actually carrying contraband or is a terrorist, just smile, comply when reasonable, and then say politely that you'd like to see their manager to file a complaint.
I travel across the US Canada land border from time to time (in the mountain west). My experience has been that Canadian officials are universally civil and respectful while US officials are universally not.
As a frequent traveler between the US and Canada, I’ve only ever got grief (including accusations of smuggling) from Canadian officials. Going to the Us side it’s usually a simple “have a nice day”.
It depends on the entry point. If I go through US customs in the Toronto airport, it's on Canadian soil. If someone there is having an issue with the process, they can withdraw their entry request and leave. That's perfectly fine and they shouldn't be punished for it. You don't have that option if you use a land crossing as you're physically inside the US.
Many US airports, especially away from the coasts, don't have any immigration/customs facilities, instead flights from Canada to the US go thru US customs in Canada (make sure you get to that flight early) since it's cheaper to put US facilities in a relatively smaller number of Canadian Airports
I recommend caution when asking the agents at Shannon if the Republic of Ireland still has sovereignty from the United States of America. In my experience, it hits a nerve.
The Bahamas also has US customs there. You do the immigration part before boarding your plane. And you land on the US on a domestic terminal and don’t go over customs.
But customers officers can't force you to comply can they? So whether or not they have any authority is irrelevant. Of course if you choose not comply you have to turn around.
Sure... but I don't know where US citizens will go if they do not have residence in another country. Not everyone getting searched reside outside the US.
In that case you as a citizen are allowed to enter, but whatever they're searching (phone, computer, etc) may be detained and you'll be given a receipt and (often) an opportunity to claim it at a later date.
That's not true.
the Consitution makes a distinction between 'person' and 'citizen', but is painfully ambiguous about 'People'. In context, 'people' most likely means 'citizens'.
Even if you mean 'persons', not 'people', it's still largely ambiguous.
> the right of the people to be secure in their persons, houses, papers, and effects
> other [right]s retained by the people.
> [powers] are reserved to the States respectively, or to the people.
'People' usually means 'voters':
> chosen every second Year by the People of the several States
> The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof,
> the people fill the vacancies by election as the legislature may direct.
Government is made of 'citizens':
> No Person shall be a Representative who shall not have ... been seven Years a Citizen of the United States,
[etc for Senator, President]
and 'citizens' are covered by Federal Judiciary in interstate cases and interstate rights:
> judicial Power shall extend to all Cases ... between Citizens and ...
> The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Amendment XIV (1868) clarifies the difference between a 'person' and 'citizen', to some [insufficient] extent.
> All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
and makes the most interesting statement about the rights of a 'person'
> 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.
The reality is that the Constituation does not explain what are the rights of non-citizen persons, wihile at the same time repeatedly stating that not all persons are citizens.
You can split hairs on the wording, and many judges have, but the truth is that the authors just didn't write carefully about visitors and non-citizen immigrants, since international travel was very difficult in the 18th and 19th Centuries so not a big deal (except for slavery, which was a whole different mess).
It depends on state/city law. In San Francisco, for example, non-citizens who have school-age kids can vote in local school board elections (as of last year).
Your reasoning may be correct, but not quite so obvious to courts. For instance, foreigners' right to keep and bare arms is routinely violated, even though they are people.
> Applying intermediate scrutiny to the federal ban on arms possession by unauthorized aliens, the court found the law to be reasonable. Since unauthorized aliens "often live largely outside the formal system" and are "harder to trace and more likely to assume a false identity," the government may rationally limit their access to firearms.
> Thus, the Seventh Circuit leaves Meza-Rodriguez with the right to bear arms, but without the ability to exorcise that right under federal law.
What is the point of a theoretical right that can't be exercised in practice? Citizens of the USSR had the right to free speech, free political expression, etc.
> What is the point of a theoretical right that can't be exercised in practice?
It is perhaps a more accurate description to say that Meza-Rodriquez is in the class of people to whom the right applies, but that the right allows restrictions based on conduct, including illegal presence.
The First Amendment does not have the same restrictions as the Second Amendment.
To the extent that your speech does not also constitute illegal action, there are no restrictions on speech and those protections do not depend on nationality, citizenship, etc. All that matters is the jurisdiction of the US court system (since they can't enforce First Amendment rights if they don't have jurisdiction).
Some types of speech are also acts, like conspiring to commit a crime, or inciting violent action. In those cases, the content of the speech is protected, but the actions of the speech are subject to prosecution.
Even if that's true, that simply means the search moves a few feet to US soil, where they stand on one side of the border and you stand on the other. And they don't have to let you in if you're not a US citizen or lawful resident.
No, if you're a citizen or lawful resident they have to let you in...eventually. Courts have ruled that they can hold you at the border for a few hours.
and constitutionally speaking, permanent exile isn't considered a punishment for noncitizens, so SCOTUS can rule whatever they want is unconstitutional, it still means they're gonna do it
That's completely untrue, as much as it would make sense for it to be. In fact, constitutional rights have not been applied universally to noncitizens by courts. Everything from the First Amendment onward has been limited by case law as it applies to non-US persons.
