In the weeks leading up to the AP Government exam, I have been cramming countless required documents, court cases and legislative rules. Although much of the content covered in AP Government can be intricate,and at times complex, there was one topic I’ve always found straightforward: due process. Unfortunately, the same cannot be said for our president.
Due process is a fundamental legal concept common to many Western countries. In the United States both the 5th and 14th amendments of the Constitution protect “all persons” regardless of citizenship status from being deprived of life, liberty or property without a formal process. The right of non-citizens to due process, specifically in immigration hearings, is not a novel idea; the Supreme Court has held since the late 19th century that all people living within the jurisdiction of the United States are entitled to equal protection under the law. This precedent has been so well established that even Antonin Scalia, a fiercely originalist justice for whom President Trump has expressed admiration for, acknowledged the right of non-citizens to due process in the majority opinion of Reno v. Flores. Yet, in a massive expansion of executive power, the Trump administration has opted to violate these rights in pursuit of a speedy and imprecise mass deportation campaign.
The first Trump administration policy ignorant to the rights of undocumented immigrants is expedited removal. Typically when a person is arrested by Immigration and Customs Enforcement (ICE) or Customs and Border Patrol (CBP), they have the opportunity to plead their case before a immigration judge prior to being deported. Created in 1996, the Expedited Removal Statute allows ICE and CBP to deport undocumented immigrants without a court hearing, provided they were apprehended within 100 miles of the border and within 14 days of illegally entering the U.S. In practice, expedited removal is meant to allow border patrol agents to quickly deport immigrants found during their patrols. Recently, the Department of Homeland Security, under the direction of Trump, announced an unprecedented expansion of the expedited removal statute: any immigrant, found anywhere in the country who cannot prove they have resided in the U.S. for the two years is eligible for removal under expedited procedures. This reinterpretation of the Expedited Removal Statute means that undocumented immigrants who have spent years in the U.S. can be forcibly and swiftly expelled from the country without ever having so much as a second before a judge.
Additionally, Trump has evoked the Alien Enemies Act, a legislative relic intended to allow the president to deport male citizens hailing from nations the U.S. is actively at war with without a hearing. The Trump administration has designated South American Cartels including MS-13 and Tren de Aragua as terrorist organizations, allowing the president to, in theory, immediately deport any of their members currently in the U.S. While targeting violent criminal organizations is imperative for public safety, the use of the Alien Enemies Act in the context of Trump’s deportation plan is dangerous and legally dubious. The act was intended for times of declared war against a nation state, not for ill defined “invasions” of non-state groups like cartels, so the premise of Trump’s interpretation of the statute is already suspect. In using the statute, the Trump administration has deported individuals, many without substantial or well articulated connections to any criminal organization, without hearings or access to counsel. In one case, 238 migrants accused of membership to these violent gangs were flown to El Salvador where they were detained in the “CECOT” maximum security prison. According to CBS News, 75% of the migrants flown to El Salvador have no known criminal record and many were detained because of superficial evidence like “gang affiliated” tattoos. In response to criticism of the deportations, president Trump has indicated that it is up to El Salvador, not the U.S. to release any person mistakenly deported.
Due process is not a privilege; it is a long standing central right and principle of American democracy. We must not forget that the systematic violation of the colonists right to due process was the very exigence for our nation’s founding. To now turn around and deny that same right to others based on their documentation status is not only unconstitutional but antithetical to the moral principles on which the framers built our government.
Immigration is a legitimate issue in the United States. For years our system has been overwhelmed and insecure; President Trump campaigned on swiftly and permanently fixing these issues. His solutions, however, cannot be to ignore key provisions of the constitution in the name of speed and efficiency. We can have an immigration system that is orderly and secure without discarding the values that define our nation.
