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How can there be a legal injury in removing a citizen of Somalia, Venezuela, Afghanistan, Mexico, or any other country, from the U.S.?
Recently, Rep. Pramila Jayapal, D-Wash., challenged the validity of deportations of illegal aliens who have not been convicted of additional crimes. She declared in a Nov. 18 House Judiciary Committee markup meeting that “It has never been more important for people to have their day in court,” referring to illegal immigrants. She has also re-introduced legislation that would repeal mandatory detention for illegal aliens and establish a presumption of release, rendering it much more difficult for the Trump administration to detain and deport illegal aliens. Leftists like Jayapal flatly deny the fact that illegal entry into the U.S. is a crime.
This is just the latest in a string of leftist politicians and pundits attacking Trump’s deportations of illegal aliens as a violation of “due process.” The frequent invocation of “due process” by media voices and politicians seems to grant the left legitimacy and the moral high ground as they rail against Trump’s immigration agenda, which nevertheless has broad popular support from voters.
To dismantle these kinds of claims, we simply need to be more precise about terms, definitions, and standards. What is due process? What is deportation? What is a legal injury? One of the challenges in treating these questions is the complexity of prevailing legal procedures, details of specific bills, and court precedents. These combined complexities often obscure the fundamental questions. I want to consider the fundamentals surrounding deportations and “due process” from the standpoint of first principles of the American Constitution and natural rights republicanism.
Defining Due Process
The phrase “due process of law” appears in the Fifth Amendment, which guarantees that the federal government may not deprive any person of “life, liberty, or property, without due process of law.” In popular parlance, most Americans think of “due process” in connection with procedural rights mentioned in the U.S. Constitution and individual state constitutions — the rights of citizens to be secure from unreasonable searches and seizures, seizures of property without just compensation, double jeopardy, and self-incrimination, as well as the rights to a speedy and public trial by jury, the right to know the witnesses and evidence against you and to have legal counsel, the right of habeas corpus, and so on. These are the constitutional protections which are (in theory) supposed to protect people from having their lives, liberty, or property curtailed arbitrarily.
The U.S. Constitution does use the language of “persons” who shall not be deprived of these rights, as opposed to the language merely of “citizens.” Citizenship entails certain rights — certain “privileges and immunities” — exclusively held by citizens and not by just any person from anywhere. For example, voting rights are exclusively the rights of citizens. However, since the law aims at impartial protection, the Constitution and American legal tradition also protect some general rights of “persons,” as in, “No person” shall be deprived of life, liberty, or property without due process of the law. Being deprived of life, liberty, or property are forms of legal penalties and punishments, and one can only lawfully merit legal penalties by committing crimes and being duly convicted thereof. The language here is “person” because foreign citizens or resident or illegal aliens are indeed capable of committing crimes or being accused of crimes in the U.S. The blessing of “equal protection of the laws” and “due process of the law” are for all persons within the jurisdiction of the U.S., which is why it would still be a crime against the law for anyone to murder non-citizens in the U.S.
Defining Deportation and Legal Injury
However, we have to also get clear about the nature of deportation and legal injury. What are the deportations which President Donald Trump is carrying out? DHS, ICE, and Border Patrol are arresting and detaining aliens who are illegally present in the U.S. (such as those who have entered illegally, overstayed a visa, had a visa or other legal status revoked, or been legally denaturalized) and then removing them from the U.S. to their home countries or to a willing third country. The problem for the leftist advocates of alleged “due process” is that there should not be any legal injury in being removed from the United States if you are not a citizen of the United States. For example, if someone is a native citizen of Somalia, Venezuela, Mexico, or any other foreign country, how can there be a legal injury in removing such a person from the U.S. (where he does not belong and is only present in violation of the laws) to his own country or to another country willing to accept him?
Since Congress has provided a legal process for removal of illegal aliens, involving administrative hearings in immigration court, the only way there could be a legal injury for an illegal alien would be if that legal process is not followed correctly, or if somehow someone was deported who had a legal right to be here in the U.S. The details of this process are beyond the scope of my survey here. The key point is that the leftists who invoke “due process” will still be upset when illegal aliens are deported even if the Trump administration follows all the legal procedures properly. I would also argue that the legal process should be revised and expedited to make it as quick and easy as possible for the Trump administration to deport illegal aliens without endless legal hurdles and obstacles. --->READ MORE HERE
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