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

Hopes and Expectations—Judicial Edition

In my last post, I indicated that I had hopes for the courts to dampen the Trumpian madness, but my hopes are tempered by the understanding that the courts, including the Supreme Court, have only infrequently been a bulwark for freedom or civil liberties, especially in times of national crises.

Take the 1857 Dred Scott case.  In this critical period of American history, the Supreme Court held that Blacks could not become American citizens. It also held that the Missouri Compromise was unconstitutional because it violated the Fifth Amendment property rights of slave owners. The author of the opinion, Chief Justice Roger Taney, and other justices hoped that the decision would put to rest the country’s slavery problem. Instead, Dred Scott, which has been denounced for its racism, judicial activism, bad history, and awful legal reasoning, helped precipitate the Civil War. Many rank this as the worst decision in Supreme Court history, although its competitors are legion.

Consider “You can’t shout fire in a crowded theater.” This is often seen as a forceful defense of the First Amendment holding that the government can prohibit speech only when the words present a “clear and present danger.” However, in the 1919 case in which Oliver Wendell Holmes wrote the memorable phrase (Schenck v. United States), the Supreme Court unanimously upheld the convictions and jail sentences of Schenck and others for distributing fliers advocating resistance to the World War I draft. In that case free speech took a back seat to wartime fears. Only fifty years later was Schenck overruled.

The Supreme Court in Korematsu v. United States (1944) upheld the internment of Japanese Americans in World War II, another decision that makes the list for most atrocious. Forty years later, Korematsu’s conviction was overturned because evidence had been suppressed. In fact, intelligence agencies had shown no evidence that Japanese Americans were acting as Japanese spies. Reparations were granted internees under the 1988 Civil Liberties Act. However, it took until 2018 before the Supreme Court indicated that Korematsu was no longer good law (Trump v. Hawaii). In 2023, Students for Fair Admissions v. Harvard definitively stated that the wartime decision had been overruled. But that case had other ramifications (see below).

Today’s times bear resemblances to what is often now called the McCarthy era, which actually began before Senator Joe McCarthy came to national prominence. During the initial stages of the destructive anti-communism movement, the Supreme Court had encouraged it by upholding convictions for membership in disfavored groups. Only after McCarthyism had been discredited, did the Supreme Court hold that people could not be imprisoned for beliefs but only for actions.

In short, the Supreme Court has an imperfect record at best for protecting freedoms, especially in the midst of crises. Even when we may think that the Court has protected us — and it has on occasion — it often has done so only after a crisis is over, and the protection matters little.

There are reasons to hope that this time the courts will be protective of the constitution and civil liberties. The current legal cases mostly remain in the lowest federal courts, and those courts seem to be performing well, seemingly attempting to come to grips with the many issues presented by the administration and holding back administrative actions that bend towards authoritarianism. There is hope, too, as cases move up to the Supreme Court. In one case that has already come before the Court, the justices refused to set aside a restraining order as Trump wanted. Justice Amy Coney Barrett and Chief Justice John Roberts joined the majority. Moreover, Roberts spoke out against the cries from Trump and Trumpistas for the impeachment of judges who have dared to cross the president. (Perhaps in spite of life tenure, some judges are intimidated by impeachment threats, and Roberts reassured such nervous Nelsons. But, since a removal from office requires a two-thirds vote in the Senate, which ain’t gonna happen, Roberts’s words can be seen as grandstanding.)

Nevertheless, there are reasons for Trump to see the Supreme Court and the Chief Justice as supportive of his agenda. So, for example, the attacks on diversity, equity and inclusion efforts (DEI) together with the attempt to remove American racism from the national consciousness has its support in the case striking down affirmative action at Harvard. Notably, Chief Justice Roberts wrote the Court’s opinion in Students for Fair Admissions v. Harvard (2023). Without that Supreme Court decision, we would not have the obsessive anti-DEI movement

Moreover, Roberts wrote the presidential immunity decision, which surely emboldens Trump. The Court has suggested that the president can fire anyone in the executive branch, which surely emboldens Trump. The Court has also taken steps and is expected to take more towards gutting the powers of independent agencies, which surely has emboldened Trump. Roberts wrote a decision that eviscerated the Voting Rights Act, which emboldened conservatives to suppress voting. Roberts wrote a disturbing decision about partisan gerrymandering which acknowledged that partisan gerrymandering is really, really bad and a threat to democracy but that we shouldn’t expect the Court to offer a remedy. Just as that gerrymandering is beyond the Court’s authority according Roberts’s opinion, Trump contends that his actions affecting foreign affairs are beyond the Justices’ bailiwick.

I do have hopes that the courts will be a bulwark against the move to authoritarianism. But my hopes are tempered.

Posted on by rjonakait

Aphorisms When Thinking About Trump (II)

“O you who complain of ingratitude, have you not had the pleasure of doing good?” Sebastién Roch Nicolas Chamfort.

“Fear not those who argue but those who dodge.” Marie von Ebner-Eschenbach.

“The man who is too old to learn was probably always too old to learn.” Henry S. Haskins.

“A party which is not afraid of letting culture, business, and welfare go to ruin completely can be omnipotent for a while.” Jakob Burckhardt.

“A decent provision for the poor is the true test of civilization.” Dr. Samuel Johnson.

“The mind of a bigot is like the pupil of the eye; the more light you pour upon it, the more it will contract.” Oliver Wendell Holmes, Jr.

“The people who are most bigoted are the people who have no convictions at all.” G.K. Chesterton.

“Any mental activity is easy if it need not take reality into consideration.” Marcel Proust.

“Unanimity is almost always an indication of servitude.” Charles d Rémusat

“There is no patriotic art and no patriotic science.” Johann Wolfgang von Goethe.

“Science has promised us truth. . . . It has never promised us either peace or happiness.” Gustave Le Bon

“Perhaps in time the so-called Dark Ages will be thought of as including our own.” Georg Christoph Lichtenberg.

“Always mistrust a subordinate who never finds fault with his superior.” John Churton Collins.

“Experience shows us that the first defense of weak minds is to recriminate.” Samuel Taylor Coleridge.

“The greatest of faults, I should say, is to be conscious of none.” Thomas Carlyle.

“Every man likes the smell of his own farts.” Icelandic proverb.

“When one had not had a good father, one must create one.” Friedrich Wilhelm Nietzsche.

“The secret of the demagogue is to make himself as stupid as his audience so that they believe they are as clever as he.” Karl Kraus.

“The triumph of demagogies is short-lived. But the ruins are eternal.” Charles Pierre Péguy

“Power does not corrupt men; fools, however, if they get into a position of power, corrupt power.” George Bernard Shaw.