Barring New Yorkers from Global Entry Violates the US Constitution

It has been 25 years since I graduated from law school and almost as long since I have practiced law. I am no longer so certain why I went to law school, but I am damn certain that I remember Constitutional law. This will clearly come in handy as we look at the tyranny that comes next.

The Trump Administration’s announcement that it is barring New York residents from the Global Entry and other Homeland Security-run Trusted Traveler programs last night is a violation of the Constitution. While the Federal government has gone out of its way to structure this so that it does not appear to be an outright ban – New Yorkers aren’t technically barred from participation, but barred from applying for or renewing – this cannot possibly stand in a court of law.

First, the Trump Administration is a prima facie violation of Article 4, Section 2, Clause 1 of the Constitution, also know as the State Citizenship Privileges and Immunities Clause. That clause reads, quite simply:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Through multiple cases, including Dred Scott, this has been held to guarantee the citizens of each state of the natural and fundamental rights inherent in the citizenship of persons in a free society. It provides a guaranty to the citizens of the different states of equal treatment by Congress. While there is case law from the 20^th Century that asserted that this clause had become obsolete, I would attribute that to the lack of foresight of the federal judiciary that did not anticipate actions by today’s Executive branch.

Second, the pronouncement violates the Equal Protection Clause in the end of Clause 1 of the 14^th Amendment. That clause reads:

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. 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.

Although the Equal Protection Clause applies only to state governments, and was used to wipe out slavery in 1868 (and later as the basis for ending racial discrimination throughout the South), it applies to the Federal government through the Fifth Amendment’s due process guarantee. There is a long series of case law, beginning with Bolling v. Sharpe (1954), extending it to restrain acts of the Federal government through the argument that due process and equal protection are not mutually exclusive.

And, then there is the Commerce Clause of the Constitution that lies in Article 1, Section 3, Clause 8 of the Constitution. This article extends to the Federal government the duty and authority to regulate trade and commerce by and between the states and with foreign governments. If all other arguments were to fail, an action by the executive branch favoring an expedited travel process for residents of certain states, and restricting it for others, would certainly violate this clause.