It seems like not a day goes by without some judge slamming the Trump administration’s summary deportation of illegal immigrants, that is, without having granted them a hearing at which time they could defend their right to remain here.
The proceedings are loosely billed as “due process” hearings and involve the adjudication of “due process” claims. Both derive from the Constitution’s guarantee of “due process of law” which has come to be popularly understood as entitling those who will be affected by a government action must be given advance notice of what the government plans to do and how the government’s action may deprive them of life, liberty or property.
Over the years, courts have generally held that non-citizens, even individuals who entered the United States illegally, have due process rights. Yet the current phenomenon of several million immigrants who entered the U.S. simply by crossing its borders into the country has perforce upended all prior notions of due process rights. How would it be possible to grant hearings to millions of individuals to formally determine whether or not they are each entitled to remain here under our immigration laws? Surely our court system cannot reasonably be expected to orderly accommodate such wildly unprecedented volume.
Yet, are the millions of illegals be allowed to remain here by default because we are incapable of processing their removal?
In fact, it is clear that the current situation with its massive numbers would never have occurred to the drafters of the Constitution’s due process provisions. Indeed, it is more than likely that they thought only in terms of legal citizens. So, some tweaking might be possible, if not required.
In the coming months appellate courts, including the U.S. Supreme Court, will have immigration cases involving the scope of due process protections and will have the opportunity to opine on the matter. So, we can expect to know more sooner rather than later.
We should keep in mind that while we have the time-honored principle of freedom of speech enshrined in the First Amendment, we still do not look to it as authorizing “Shouting fire in a crowded theatre.”
