Posted on by rjonakait

The Process That Should Be Due 

The president asked the interviewer: “They talk about due process, but do you get due process when you’re here illegally?” I have little confidence about what the Supreme Court will say in the future, but the answer as of today is, Yes. Undocumented immigrants in the country are entitled to due process. The Constitution’s Fifth Amendment says: 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 

This provision does not just guarantee rights to citizens or lawful residents. No person, not just citizens, shall be deprived of the double jeopardy or the self-incrimination protections. And no person, not just citizens, shall be deprived of life, liberty, or property without due process of law. In a series of early twentieth century cases, the Supreme Court made clear that these constitutional protections were extended to all aliens within the United States, including those who entered unlawfully. The Court determined that even one whose presence in this country is “unlawful, involuntary, or transitory” is entitled to due process before being deported.  

However, this constitutional protection applies only to people who are within the country. It does not apply to border crossings. Aliens can be excluded from the country at the border without due process. This also applies at points of entry, such as an airport because, while technically on U.S. soil, the would-be immigrants are not considered to have entered the United States. (You, too, have fewer rights when crossing the border. As has happened to many of us when entering the country, you can be searched in ways that the Constitution would not allow within the country.) 

Trump, when told about the undocumenteds’ due process rights, refused to concede what the Constitution commands, but still railed against the practicality of granting due process: “I don’t know. It might say that, but if you’re talking about that, then we’d have to have a million or two million or three million trials.” Surprisingly for Trump, that was an underestimate. He indicates that he wants to remove all those here illegally (except perhaps if they are connected to Elon or to him). Not surprisingly, precise numbers are not available, but the usual estimates are about 11 million illegal aliens are in the country. 

While the Constitution mandates due process, it does not specify what that process entails. The courts have held that it is a variable concept. What Justice Oliver Wendell Holmes, Jr., wrote more than a century ago is still the law: “What is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation.” Justice Felix Frankfurter fifty years later said that due process “is not a technical conception with a fixed content unrelated to time, place and circumstances. . . .  ‘Due process’ cannot be imprisoned within the treacherous limits of any formula.” The procedures are not the same for adjudicating a parking ticket, determining a parole violation, trying a murder charge, or considering the continuation of government benefits or entitlements. 

A famous twentieth-century judge, Henry Friendly, created a list of procedures that would satisfy due process: 

  1. An unbiased tribunal. 
  1. Notice of the proposed action and the grounds asserted for it. 
  1. Opportunity to present reasons why the proposed action should not be taken. 
  1. The right to present evidence, including the right to call witnesses. 
  1. The right to know opposing evidence. 
  1. The right to cross-examine adverse witnesses. 
  1. A decision based exclusively on the evidence presented. 
  1. Opportunity to be represented by counsel. 
  1. Requirement that the tribunal prepare a record of the evidence presented. 
  1. Requirement that the tribunal prepare written findings of fact and reasons for its decision. 

All of these procedures are not necessary to satisfy the Constitution in all circumstances. On the other hand, the consensus holds that at a minimum due process requires notice and a meaningful opportunity to be heard before a neutral decisionmaker. 

In talking about due process in deportations, Trump said that he has “brilliant lawyers that work for me.” (They actually work for the country.) If so, they should be seeking procedures that satisfy due process and that are simple enough to further Trump’s goals. These procedures cannot just be ones that ensure mass deportations. Instead, they must bear in mind what Chief Justice Earl Warren said: “Due process embodies the differing rules of fair play.” Or what Justice Frankfurter said: Due process is a “respect enforced by law for that feeling of just treatment.” 

Removing people who are not legally here may or may not be good for America but procedures that afford fair play and just treatment as well as the perception of fair play and just treatment are a Constitutional requirement. They are important not only to those the government is trying to strip of liberty but to the rest of us who want a fair and just country. 

Posted on by rjonakait

ACB Told Us So

          A week ago, Supreme Court Justice Amy Coney Barrett in a speech urged those who are concerned about the Supreme Court to consider more than a case’s outcome. “It’s not just the result that matters. You can disagree with the result passionately. No judge is deciding a case in order to impose a policy result. They are trying to make their best effort to determine what the law requires.” She instructed her audience to the live-streamed event, “Read the opinion,” and asked, “Does [the decision] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?”

          I am one of those who has sleepless nights and troubled naps worrying about the policy decisions made by Barrett and her colleagues. I am hardly alone. A recent poll found that only one in six Americans thinks that the Court is impartial. How could I be so wrong? How could most of you be so wrong? But I can now rest assured. “No judge is deciding a case in order to impose a policy result.” The truth has been delivered. Each and every judge is unbiased. How do I know? Amy Coney Barrett has told me so. Apparently, assertion equals truth.

          It is not surprising that Barrett is especially sensitive to criticisms that her decisions are partisan. She ascended to the Court through blatant partisan maneuverings of Mitch McConnell, and of course, President Trump appointed her because he and others believed that her decisions in certain areas would be predictable. It was expected that she would favor corporations and businesses; aid to religious schools; free exercise of religion claims that would exempt the “religious” from the legal obligations that the rest of us must observe; the limitation or elimination of abortion, contraception, and sexual rights; and the expansion of gun rights.

          The setting of her speech—the Ronald Reagan Library—may have seemed partisan, but the Library over the years has invited all the justices to keynote events. On the other hand, I did not see a non-white face in the audience. That does not mean there was no diversity. Before Barrett spoke, some notables were introduced and that showed that there were white males in attendance from several different boardrooms. Ah, diversity. (These gentlemen are likely to be happy with a current Court trend. Adam Cohen in Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (2020) notes a study that the Warren Court found in favor of businesses 28% of the time; the Burger Court 48% of the time; 54% for the Rehnquist Court; and 64% for the Roberts Court. Cohen also reports that Justice Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time and that Chief Justice Rehnquist voted for defendants in non-white-collar crimes 8% of the times but in white collar crimes 62% of the time.)

          Barrett insists that it is not just the result that matters. Perhaps she is right, but if so, only barely. For most of us, the outcome is what we care about, not how the decision is reached. See post of April 4, 202: Search Results for “Originalism?” – AJ’s Dad (ajsdad.blog). But in trying to reassure us that the results come not from the justice’s personal preferences, Justice Barrett said something troubling. She urged reading the opinion and asked if it reads “like something that was purely results driven.” Purely! I should be sanguine if it is only 80% or 23% results driven? She goes on and asks us if a Justice’s opinion reads as if “designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” If it reads as that honest effort, I should stop my negative thinking.

          Lawyers are results driven. An attorney is supposed to find a compelling legal path to the outcome the client wants. The lawyer is trying to present a persuasive effort that the client’s desired result is what the Constitution, precedent, or statute requires. I would like to think the Supreme Court Justices would at least make adequate attorneys, and it would be shocking if they could not make apparently good arguments to justify their decisions even if they were results driven. (Barrett, however, did not have much of a career as an attorney; it lasted only a couple years.)

          Some people are convinced by mere preaching from on high, but others believe–cliché alert–that actions speak louder than words. Opinions justifying results that fit with the perceived policy choices of the justices are unlikely to convince the majority of us who are skeptical about the neutrality of the justices. If Barrett rules to overturn Roe v. Wade, I among many are likely to think it was a predetermined result that stems from her conservative and religious views no matter what “legal” reasoning she gives for the outcome. What might convince us that precedent and the Constitution drive justices’ votes would be decisions in which justices have gone against the preconceptions we have of them. Interestingly and all too tellingly, Barrett in her speech provided no such evidence of such an event.

          Her word is supposed to be good enough, but what do you think when someone tells you how honest or disinterested they are? A Supreme Court Justice telling me how pure in thought and motive all the justices are brings a similar skeptical reaction. Justices would be better off not making such pronouncements. If they are going to make speeches, perhaps they should just tell anecdotes—I might feel better about the Court if I found out, for example, that two of its members have argued about what has been the best heavy metal band—and not make what is really a policy statement about how divorced the justices are from making policy pronouncements.

          Even so, before condemning a decision as results-oriented, there is merit to her injunction to read the opinion first, advice that would be easier to follow if justices were forbidden from writing their opinions in more than double-digit pages, something, I assure you, will not happen. Nevertheless, reading the opinion is a good idea. So I was surprised when two days—I repeat, two days—after Barrett’s speech, the Supreme Court rendered a five-to-four decision with vigorous dissents. The decision, upon the request of Louisiana, other states, and companies in the gas and oil industry, reinstated a Trump-era rule that limited the ability of states to block projects that could pollute waterways. The decision fit my preconception of how the conservatives would rule on an environmental case, but I was taking Barrett to heart and went to read the opinion before coming to any conclusions. Guess what? There was no opinion. This came out of what is known as the “shadow docket” of the Court. The majority did not give reasons for its ruling. “Read the opinion”?!?

          I don’t know if Amy Coney Barrett has a good sense of humor. But I do know that she can be ironic.