A federal court in Portland, Oregon has ruled the federal government’s “No-Fly” list is unconstitutional because it violates the right to due process under the Fifth and Fourteenth Amendments.
“[W]ithout proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List,” the court ruled on Tuesday. “[T]he absence of any meaningful procedures to afford Plaintiffs the opportunity to contest their placement on the No-Fly List violates Plaintiffs’ rights to procedural due process.”
The case was brought to court four years ago by the American Civil Liberties Union after 13 American Muslims were added to the list without explanation or ability to seek redress.
“For years, in the name of national security the government has argued for blanket secrecy and judicial deference to its profoundly unfair No Fly List procedures, and those arguments have now been resoundingly rejected by the court,” a lawyer in the case, ACLU National Security Project Director Hina Shamsi, said in a press release issued by the ACLU.
“Our clients will finally get the due process to which they are entitled under the Constitution. This excellent decision also benefits other people wrongly stuck on the No Fly List, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardship. We hope this serves as a wake-up call for the government to fix its broken watchlist system, which has swept up so many innocent people.”
Under U.S. law, the freedom of movement is addressed by the Privileges and Immunities Clause of the United States Constitution which states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The Constitution does not mention international travel.
In 1823 the Supreme Court ruled in Corfield v. Coryell, 6 Fed. Cas. 546 that freedom of movement is a constitutional right. In Paul v. Virginia, 75 U.S. 168 the court defined freedom of movement as “right of free ingress into other States, and egress from them.”
The freedom of movement was assumed to be a natural right similar to right to hold property and self-defense and was not enumerated in the Articles of Confederation. Later laws, however, such as the Mann Act, put limitations on the freedom to travel.
In the 20th century, with the introduction of the automobile, government imposed further restrictions on the right to travel. Rogers Roots calls the right to travel “the orphaned right.”