Due Process

(The image up above is King Charles I, who lost his head in part for refusing to provide due process before locking people up.)

A reporter asked me to address claims by the like of Trump, Vance, and Miller that they don’t have to—and can’t afford to—offer due process to people caught up in the deportation machine. Here’s what I said:

The basic idea of due process, as captured in the 5th (with respect to the federal government) and 14th (with respect to the states) Amendments to the U.S. Constitution, is that before the government does something legally harmful to someone, like deciding that they're a criminal, taking away their property, etc., a person is entitled to an opportunity to contest the decision before a neutral decision-maker. 

In a lot of ways, due process is our most basic constitutional right. First, it's the oldest: it traces all the way back to Magna Carta, where the Barons imposed on King John the requirement that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice." (see #39 and #40 in this version).

Second, it's really the precondition of all other rights. Any other right a person might have, like the right to free speech or to hold property, is meaningless if the government can take it away without giving them their day in court. For example, without a right to due process (and related rights like the writ of habeas corpus), the government could put me in prison or steal my property for my political beliefs notwithstanding the 1st Amendment---because I'd have no way to challenge those things and hence no way to ask a judge to rule that my 1st Amendment rights were violated. 

Hence, to say that someone lacks the right to due process is to say that they're effectively an outlaw, to whom the government may harm in any way it wants---not just deporting them, but locking them or up or even shooting them---because there is no court available to hold the government accountable. 

Ok, so why do people who aren't citizens, and perhaps aren't even lawfully present in the country, have due process rights?  There are at least two clear reasons why that is the case. 

First, the basic text of the Constitution makes this clear. The Constitution says that "no person... shall be deprived of life, liberty, or property, without due process of law."  The word "person" is important, because it covers everybody. It's broader than citizen. This is to be contrasted with other parts of the constitution that clearly limit the scope to citizens. For example, the 15th Amendment says "the right of citizens of the United States to vote..." and the privileges and immunities clause of article IV says "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."  So the Constitution clearly distinguishes between rights that are available only to citizens and rights that are available to all persons, and due process falls in the latter category.  

The Supreme Court has recognized this for many years. It says as much in the J.G.G. case just recently.  And rightly so, for this has been well established law for over a century, at least since Yamataya v. Fisher (a.k.a. "The Japanese Immigrant Case") in 1903.  In that case, the Supreme Court explained that even someone who was illegally present was nonetheless entitled to a hearing before being deported. 

The second reason that due process is necessary before even a noncitizen, and even an undocumented immigrant, is deported is because---how else is the government supposed to decide who is a noncitizen, who is an undocumented immigrant?  The person's status is often (though not always) the very thing that is under dispute in a deportation.  If the government grabs me off the street and said it's going to deport me, even though I'm a natural-born U.S. citizen, it's due process that allows me to prove that. Otherwise, I can be dragged off to another country even as I shout "I'm a citizen!" and the ICE officer just replies "I don't believe you."  A neutral decisionmaker, that is, due process, is required to prove that someone is in the category of people subject to alleged summary deportation in the first place. 

Exactly the same point applies with respect to the "Alien Enemies Act" deportations of certain alleged gang members: if someone says "no, I'm not a gang member," then the government can't say "we didn't give them a hearing because we don't have to give hearings to gang members."  First it has to establish legally that they're gang members! Of course, this might be different if someone admits they're an undocumented immigrant or a gang member or something. But often that isn't the case, or there are disputes about what they admitted (as in some of the Alien Enemies Act cases going on right now). That's what we have courts for, to resolve those disputes. 

Stephen Miller and Donald Trump claim to be worried about how difficult and expensive it would be to conduct millions of deportation hearings. To this, I have two answers. 

First, you can't just refuse to give people due process before the government harms them by saying that it's too much work or too expensive.  Imagine that they said the same thing about the criminal law?  In Chicago, we supposedly have a problem with carjacking (or so they say, I'm not sure I believe it). Imagine if the Mayor said: "how are we supposed to get carjacking under control if we have to give everyone arrested for carjacking a trial?  Hell with it, I'm just locking them up."  Nobody would accept that, because a fair trial and innocent until proven guilty is a basic feature of democracy under law, and that means we have to accept a little bit of inefficiency---otherwise it's just a dictatorship. 

Second, "due process" doesn't mean the same thing in every case. Immigrants facing deportation don't get the same level of hearing as, for example, someone facing a criminal trial.  For one thing, you don't get a jury trial in immigration.  For another, most of the process is actually conducted in "immigration courts" within the department of justice that use pretty abbreviated procedures.  It's not actually that hard to carry them out pretty quickly. 

We can even do the math here and prove that it isn't that hard to give people subject to deportation a basic hearing. There are about 700 current immigration judges working for the federal government (source: the government). The highest salary among them. is under 200k/year. So we could triple the number of immigration judges for under 280 million dollars a year, plus overhead. Assume the cost of overhead (facilities and such), plus providing ICE attorneys to argue cases and so forth, doubles that number. We still come in at under 600 million dollars a year to triple the number of immigration cases we can hear. By contrast, the Trump administration is asking Congress for 45 billion for more detention centers in its budget. Even if the numbers are a little fuzzy around the edges, we're still talking about maybe 5% or less of the proposed increase in the detention budget, to provide people with hearings before deporting them. This is totally manageable.

In short: due process is unquestionably constitutionally required. It's our most important right, the right that makes all other rights possible. The Constitution clearly promises it to all "persons" rather than just citizens. It's not even coherent to say that unauthorized immigrants can be deported without due process, because due process is how you determine who an unauthorized immigrant is.  And it's not that expensive to provide it, relative to all of the other costs of Trump's "mass deportation" scheme.