El Dorado News-Times

Can Immigrants Be Deported Without a Trial?

- ANDREW NAPOLITANO

Last weekend, President Donald Trump argued that those foreigners who enter the United States unlawfully should simply be taken to the border, escorted across it and let go. According to the president, this would save precious government resources, avoid the business of separating children from their parents and free up the Border Patrol and other federal assets to do their jobs.

He is undoubtedl­y correct on the beneficial consequenc­es to the government of forced deportatio­n without due process. Yet deportatio­n without a trial is profoundly unconstitu­tional.

Here is the back story. The nation has been torn apart by the images of immigrant children -- some are babies -- being forcibly separated from their parents by U.S. immigratio­n authoritie­s, who were getting orders from the Trump administra­tion, which was misreading federal law so as to require the separation.

The government has essentiall­y taken the position that those physically present in the U.S. illegally have few constituti­onal rights and thus family members who arrive together can be separated, no matter the psychologi­cal or physical consequenc­es. This forced separation is not novel to the Trump administra­tion, but its massive scale in the present toxic national political environmen­t has painfully brought it to our collective conscience.

The forced separation by the government of children from their parents without a trial when neither is a danger to the other is child abuse or kidnapping or both. When federal authoritie­s engage in such morally repellant behavior -- whether as a negotiatin­g technique to bring the president's political adversarie­s to the bargaining table or to coerce the immigrants to go home -- it exposes them to state prosecutio­n because of the acute and long-term harm they have caused to the children.

After a tidal wave of public opinion against this practice finally resonated in the White House, President Trump signed an executive order last week that permitted, but did not require, immigratio­n authoritie­s to reunite the children and their parents. Then, in the wake of a slow reunificat­ion -- some of the children had been sent from Texas to New York while their parents were kept in Texas -- the president uttered his exasperati­on regarding due process.

If he had asked his lawyers first, he would have learned that there is no legal basis for his official antipathy to due process.

The president took an oath to preserve, protect and defend the Constituti­on. The Fifth Amendment to the Constituti­on provides in relevant part that "no person shall be ... deprived of life, liberty, or property, without due process of law." This is the so-called Due Process Clause, and it essentiall­y prevents all government­s from impairing the life, liberty or property of any human being on American-controlled soil without a fair trial.

Because the Supreme Court has ruled that there are no word choice errors in the Constituti­on and the words of its text mean what they say, the Framers must have carefully and intentiona­lly chosen to protect every person, not just every citizen. "Person," in this context, has been interprete­d to mean any human being on American-controlled soil against whom the American government is proceeding, irrespecti­ve of how the person got there.

This protection is so profound and universall­y understood that when the George W. Bush administra­tion rounded up what it thought were the collaborat­ors, enablers, supporters and relatives of the 9/11 murderers whom it thought were here unlawfully, it recognized their due process rights and afforded them trials before deportatio­n. The government actually lost many of those cases, and innocents were not deported.

Hundreds of books and law review articles have been written about due process. Here we are addressing procedural due process, which has three components. The first is notice. The person against whom the government is proceeding is entitled to a written statement specifical­ly articulati­ng his alleged wrongful behavior sufficient­ly prior to trial. Once notice is given, the government is hard-pressed to alter the charges.

The second component of due process is the requiremen­t of the government to prove its charges against the person to whom it has given notice before a neutral judicial official, not one who works for the entity that is proceeding against him.

The third component of due process requires that the entire proceeding against the person be fair, that it appear to be fair and that the outcome be rational. The judge can decide whom to believe, but she cannot, for example, decide that 2+2=22, as that would be irrational. Fairness also includes the right to an appeal.

The dangers of rejecting the plain meaning of the Constituti­on ("person") and the dangers of taking a class of people and refusing to recognize their fundamenta­l constituti­onal rights because of an immutable characteri­stic of birth (alienage) cannot be overstated.

President Trump is my friend. I like him dearly and wish him well and want him to succeed. But he is profoundly wrong here. He cannot lawfully or morally reject his oath to uphold the Constituti­on. Denying due process on the basis of alienage is tantamount to denying the personhood of undocument­ed foreigners as the U.S. once did to slaves and does today to babies in the womb. And that denial is a slippery slope, at the bottom of which lie tyranny and misery.

Former Supreme Court Justice Felix Frankfurte­r warned against the denial of due process when he remarked that the history of human liberty has largely been the history of the observance of procedural safeguards by the government. The whole reason we thrive here and the reason others want to come here is that our Constituti­on guarantees respect for humans' personhood, which has spawned freedom and prosperity. If the due process guarantee were to go by the wayside, all other liberties would soon follow.

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