Can I approach politics again? Only approaching. I want to talk about "due process," which is much in the news and on the social mediums, pertaining to ICE and CBP enforcement and "removal" (aka "deportation," but deportation is actually a narrower legal term). I don't want to get into discussions of morality, nor of the sitting president, which would inevitably take us to "politics." I just want to talk about law.
The Constitution explicitly says that no one is to be deprived of life, liberty or property without due process of law. But it doesn't define what due process is except skeletally. It defines the due process of impeaching and trying a president, and it defines some specific rights pertaining to criminal prosecution - habeas corpus, speedy trial, trial by jury, right not to participate in one's own prosecution, illegal search and seizure, etc. But broadly speaking, the Founders clearly assumed that the "due processes" would mostly be defined in common law. Common law would of course have to conform to the constitution, and it is the Supreme Court that determines whether any statute does.
The "common law" that covers immigration is the Immigration and Nationality Act of 1952, hereafter referred to as the INA. It has withstood constitutional review many times since 1952. It is being challenged now, which is right and proper. But...ut est, est. As it is, it is.
There are two things that stand out to me in the INA. First, it explicitly says that unlawful presence in the United States is a civil violation, and not a criminal violation. Second, it specifically provides for expeditious removal without "a day in court."
The fact that unlawful presence in the US is a civil violation takes the processes defined in the INA out of the realm of what little the constitution says about due process, because the constitution only defines certain "due process" protections for those under criminal prosecution. This is a dichotomy that seemingly a lot of Americans don't understand, especially on the lunatic fringes of Left and Right, and it's not just an issue of citizenship or non-citizenship. If you are pulled over by a law-enforcement officer for speeding, your constitutional rights exist only in the abstract, because you are not under criminal indictment. Speeding is a civil infraction (most of the time, and you'll know for certain if it isn't). So in a traffic stop, you do not have a "right" to remain silent. If you do refuse to speak, you could be placed under arrest, and THEN you'd most assuredly have a right to remain silent. So there is this dichotomy between civil and criminal law, and the Constitution doesn't address civil infractions, only criminal prosecutions.
No matter what else might be true, right or otherwise, the INA says people can be removed without the formal constitutional requirements that accompany a criminal prosecution. And this has been done under every presidential administration since Truman (and actually, every administration ever, preceding the 1952 act). I'm not asserting it's moral, just that it is the case.`
So here's my first question: Do you think current immigration enforcement efforts are denying people due process? Why?
And my second question: What do you think due process SHOULD look like for those who are unlawfully in the US?
