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