The Process That’s Due

Four things you should know

Friends,

Trump recently told an interviewer he didn’t know whether the Constitution required him to uphold due process rights of noncitizens. He also lamented the extraordinary burden of providing individual hearings for millions of immigrants marked for deportation.

He said on Truth Social that “our Court System is not letting me do the job I was Elected to do. Activist judges must let the Trump Administration deport murderers, and other criminals who have come into our Country illegally, WITHOUT DELAY!!!”

Trump adviser Stephen Miller rails almost daily against what he calls a “judicial coup” of rulings upholding the due process rights of immigrants. Miller scoffs at the notion that people Trump claims are “terrorists” must be allowed to contest their deportations, saying they only have the right to be deported.

Miller has also raised the specter of suspending the right to habeas corpus — the age-old right to challenge being taken into custody in the first place.

Federal judges have been pushing back — requiring that the regime accord due process to people facing deportation.

Last month, the Supreme Court issued a unanimous ruling in the case of Kilmar Abrego Garcia, a Maryland resident with protected status who was wrongfully deported to a Salvadoran detention facility. In that decision, the court said with one voice that Abrego Garcia should have been given the opportunity to challenge his detention and deportation.

Here are four things you should know:

1. The Constitution clearly guarantees “due process” to all “person[s].” The Constitution’s 5th Amendment says “no person shall … be deprived of life, liberty or property, without due process of law.” The word “person” makes no distinction between citizens and noncitizens. (The 14th Amendment makes this applicable to the states as well.)

2. The Supreme Court has long held that this promise extends to immigrants in deportation proceedings. In a 1993 opinion, Reno v. Flores, 507 U.S. 292, Justice Antonin Scalia — hardly a left-wing extremist — wrote that “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”

3. Due process doesn’t always require a full trial, however. At the least, immigrants facing deportation are entitled to:

(1) notice of the charges against them (the government must provide an immigrant with a charging document, often called a “notice to appear,” outlining the reasons for potential deportation).

(2) The opportunity to present evidence before an immigration judge to show why they should not be deported (e.g., asylum, student visa, green card, cancellation of removal).

(3) A judgment based on the facts of the case and applicable immigration law.

(4) the right to appeal the decision to a higher court.

4. The right to habeas corpus is fundamental to our legal system. Defandents have used habeas corpus to challenge detentions by government officials since 13th-century England and the Magna Carta. As Alexander Hamilton wrote in Federalist 84, “The subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.”

Hence, the framers provided in the U.S. Constitution that the writ of habeas corpus, carried over from British law, “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Needless to say, we are not now experiencing rebellion or invasion. Moreover, despite what Miller suggests, the authority to suspend the writ is placed in Article I, which outlines the powers of Congress, and not Article II, which lists those of the executive branch.

***

Some judges have warned that the Trump regime’s efforts to deny immigrants due process could easily expand to other groups, including American citizens.

What happens if ICE decides that the definition of an “American citizen” doesn’t apply to someone who has spoken out against the regime, for example? What happens if habeas corpus is suspended and all Americans are in danger of arbitrary punishment?

A growing number of jurists have framed this fight as existential for all Americans’ fundamental rights, not just those of immigrants. They’re right.