It’s unclear whether the concept of due process is that difficult that non-lawyers, or perhaps just those disinterested, fail to grasp its significance, or people are just making up nonsense because it’s, well, inconvenient.
If you skipped the “due process” when you came into the country, you should be afforded no “due process” on your way out.
This view has gained some steam, even though it’s completely nonsensical. Due process has nothing to do with coming into the country and no one who understands the concept would twit something so absurd unless their point was to confuse and mislead the simpletons. Who would do such a thing? Why would any patriotic, Constitution-loving American do such a thing?
President Trump asserted on Tuesday that undocumented immigrants should not be entitled to trials, insisting that his administration should be able to deport them without appearing before a judge.
The remarks, which he made in the Oval Office in front of reporters, were Mr. Trump’s latest broadside against the judiciary, which he has said is inhibiting his deportation powers. Mr. Trump falsely claimed that countries like Congo and Venezuela had emptied their prisons into the United States and that he therefore needed to bypass the constitutional demands of due process to expel the immigrants quickly.
Trump has repeated regularly that countries have emptied their prisons and insane asylums to dump their unwanted at our border. There is no basis for this. There is no evidence of this. It’s just something Trump says over and over for the sake of scaring Americans and making them hate and fear aliens. Sure, some are criminals, and some are Ph.D. students. Most are just people seeking a better life for their children.
Even so, it has nothing to do with the problem, which is aliens entering and remaining without lawful authorization. They don’t have to be criminals or crazies, MS-13, 14 or 15, to be removable. It just makes it easier when you make people hate them.
“I hope we get cooperation from the courts, because we have thousands of people that are ready to go out and you can’t have a trial for all of these people,” Mr. Trump said. “It wasn’t meant. The system wasn’t meant. And we don’t think there’s anything that says that.”
On the contrary, there is very much a system in place to deal with them, as demonstrated by Presidents Obama and Biden, both of whom deported vastly more immigrants than Trump.
He claimed that the “very bad people” he was removing from the country included killers, drug dealers and the mentally ill.
“We’re getting them out, and a judge can’t say, ‘No, you have to have a trial,’” Mr. Trump said. “The trial is going to take two years. We’re going to have a very dangerous country if we’re not allowed to do what we’re entitled to do.”
He made similar statements in a social media post on Monday in which he wrote, “We cannot give everyone a trial, because to do so would take, without exaggeration, 200 years.”
If Trump’s point is that he wants to prosecute them as “criminals,” then they must be afforded the due process required. But if Trump just wants them deported (as opposed to renditioned to a foreign prison for life, which is not a consequence of being unlawfully in the country), then they need only go before an Immigration Judge, who is an employee of the Department of Justice and a “judge” in name only, and be given an opportunity to contest the charge that they are not authorized to be or remain in the United States.
It may facilitate deportation to have more immigration judges, even though Musk just got rid of a bunch in his DOGE frenzy, and the firings are continuing, to hold deportation hearings and give each putative deportee the opportunity to challenge deportation. But still too burdensome for you?
Representative Jonathan L. Jackson, Democrat of Illinois, wrote on social media: “‘We can’t give everyone a trial’ — excuse me, what?! That’s straight-up #dictator talk. Due process isn’t optional because it’s inconvenient. This is the United States, not a banana republic. If you want to shred the Constitution, just say so.”
The extent of due process required for removal proceedings isn’t remotely the same as that required for a criminal prosecution. To conflate the two is nonsense. Then again, it’s also nonsense to conflate deportation with renditioning people to foreign prisons for life. Deportation is the removal of aliens without authority to be here to their home countries, not a Salvadorean prison. If the latter is your goal, then you have to convict them of a crime before sentencing them to life. Otherwise, just send them back after they’ve been given the opportunity to challenge removal.
But there is one more piece to the puzzle that is troublesome. Using immigration judges to make determinations presumes they will be fair and impartial, and not merely rubber stamps to Boss Bondi, just as she does her boss’ bidding. Some wags suggest that the reason the Trump administration is firing immigration judges when they need them so desperately is that they’re getting rid of the ones who won’t get with the program by actually giving the immigrant a fair hearing.
Yet, even running aliens past a cooperative immigration judge for a few minutes before their plane leaves is too much trouble for Trump. Even the most minimal of due process is just such a hassle when it would be so much easier to just call them criminals and disappear them at will.
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Thank you, Scott, for explaining due process in such a way that even the non-lawyer Current Occupant of 1600 Pennsylvania Avenue can understand it. Now, if only the news media in all its various incarnations would quote you!
But he has understood it all along. His proposal is to be excused from it. Extensively, to the point of unassailable fiat in every case. He is really at the point of making it reasonably clear that mere citizenship also will not be a protection from summary imprisonment for those he deems “really bad people.” He wants the public to back him in suspending the constitution so that he can decide who is “really bad” and pack them off to prison in El Salvador. That is the core of his proposal. One can only hope the citizenry will think it through (there is a downside risk).
Of course, from its early days, the Country has had 5th Amendment due process, but we have also had competing notions all along. There was the long tradition of “wanted, dead or alive,” or “shoot first and ask questions later.” Multiple iterations of vigilantism have come and gone. The FBI, sometimes in concert with local police forces, occasionally conducted targeted assassinations. They helped Chicago suppress the Black Panthers. Later, we had Ruby Ridge and Waco, “extraordinary renditions” and drone killings by executive fiat. The competing school of thought never quite seems to go away, so now we are on to deportations based on suggestions of status, without trials. It can’t meet basic notions of “due process.” None of it ever could. So it comes down to the notion that there is some level of crisis that allows the executive to invoke the ancient tradition of the consulta ultima, whereby congress, perhaps only implicitly and by inactivity, allows a targeted suspension of the constitution. Lincoln indulged the notion to a degree, suspending the right to habeas corpus and giving rise to a number of cases styled, “ex parte [screwee].”
Implicit in the notion that the authority of SCOTUS is ultimately “moral” is the further notion that U.S. Presidents may effectively have extra-constitutional powers, if and to the extent they can sell the premise to the electorate. I believe it is that effort which we see in progress.
Even if Congress amended the immigration laws to abolish permanent resident status and say, “The President may deport any alien at his whim to wherever he sees fit,” there would still have to be a process for making sure the person to be deported was an alien and not a citizen. No matter how little a citizen cares about aliens, a citizen’s basic self-interest justifies some degree of due process for aliens. I don’t want a citizen to get mistaken for an alien and dumped in El Salvador, but it may take something horrific like that to convince people of the necessity of due process.
When considering Trump’s flaccid deportation results in comparison to Obama and Biden while an estimated 8.3 million illegal immigrants are still working in America, you really have to hand it to him.
He’s figured out a way to accomodate the bourgeoisie, still benefitting from cheap, exploitable labor, and convince the mouth-breathing proletariate that deportation theater amounts to a net-positive impact on their lives.