Turns Out, Undocumented Immigrants DO Get Due Process

Some people claim that Donald Trump doesn’t actually believe in anything.

They say he is only truly concerned with what is good for him in the moment, and that his views and thus, policy positions on everything from tariffs to taxes, from abortion to deficits and from religion to how cool he thinks Jeffrey Epstein is varies from day-to-day, depending on what the conveniences of the moment might dictate.

But I say “whoa to thee!”. Mostly because I was forced to read Shakespeare’s plays in college and dammit, I’m going to use that experience for something!

So, while Trump’s views on many issues might be…lets go with “flexible”, I am quite certain that he is quite sincere about his dislike of immigrants, along with racial and ethnic minorities.

This is something that he has been consistent about since he was in his 20s and has never wavered from. And I believe that we see this playing out in his recent efforts to round up immigrants and deport them to gulags without so much as a hearing.

As most of us know, Trump recently flew hundreds of people, who he claims are undocumented, most of whom have never been charged with any crime, here or in any other country, to a rather unpleasant looking prison in El Salvador.

In the case of one (so far!) of the deportees, a man named Abrego Garcia, the Trump administration admitted in court that he was erroneously deported.

The US Supreme Court has issued an order, 9–0 saying that Mr. Garcia should be returned to the United States. The lower court judge has ordered the administration to document, on a daily basis, what they are doing to get him back.

So far, it seems clear that the Trump administration is expending exactly as much energy on getting Mr. Garcia back as OJ Simpson spent finding the “real killer”. In fact, members of the administration have repeatedly and explicitly said that Mr. Garcia “is never coming back”.

That would be like a parent telling their kid to do their homework and when the child is asked by his mother what he’s done to complete the assignment, the kid replying “Hear me well old lady. I am NEVER doing my flippin’ homework. I can tell you that right now”. Somehow, that doesn’t seem like a good faith effort.

All of this has led a number of Trump supporters to claim that undocumented immigrants are not legally entitled to any due process at all, before they are permanently deported to hell.

People on my twitter feed are saying that with great authority, as if they’ve studied the issue. They also say that my face looks like “a placenta set on fire”, which happens unusually often and is weirdly specific. They say this even after I point out that I just take a bad profile picture.

But they are wrong. Migrants, even those here illegally, are entitled to due process. (We’ll litigate the placenta thing in another post).

First, the Fourteenth Amendment to the US Constitution says that …”{no state} shall deprive any person of life, liberty or property without due process of law”. This language tracks with the Fifth Amendment which binds the federal government.

Notice, it says that the government may not deprive “any PERSON” of due process, NOT “any CITIZEN” or “Green Card Holder”. The courts have, for two centuries, held that immigrants are in fact “persons”, citing the fact that they look suspiciously like other persons look.

That principle was upheld unanimously by the Supreme Court in the case of Plyler v. Doe (1982). In that case the Court held 5–4 that states must educate the children of undocumented immigrants.

While the 4 dissenters disagreed on the obligation to educate, and in fact Justice William Rehnquist, the Clarence Thomas of Samual Alitos was honest enough about his true views to actually refer to the immigrants as “wetbacks” during oral argument (true story!), they explicitly agreed that the 14th Amendment protects those here illegally. Speciically, Chief Justice Warren Burger, writing for the dissenters said:

“I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically “within the jurisdiction” of a state.”

And when you think about it, it’s obvious that undocumented immigrants must have due process. At the least, the state should have to prove that they have detained the right person and there is no mistaken identity.

The state also should obviously have to prove the person they want to flush down the El Salvadorian toilet is indeed not a citizen, or at least not in the country legally.

And there must be a process for this. Maybe…I dunno…a hearing! Something where the detainee gets to challenge the government’s evidence, raise any other relevant legal issues, and present some evidence of their own.

And then…wait for it…someone actually decides what’s true. Let’s call that person a…Oh…let’s say… a short order cook! NO. NO. That’s not it. How about…a Judge! That’s it! A judge. Before you know it, you’ve got some real due process cookin’.

Trump’s alternative is to say “Trust Me. The person we jumped on the streets and then shoved in an unmarked van, drove to the airport and flew to an El Salvadorian concentration camp for the rest of his life without a hearing deserved it”.

And while it goes without saying that I would trust Donald Trump with the future of my country, the care of my children, and any of the wads of cash I like to leave lying around my house, I’m not sure I’d go as far as to trust him with this. That’s why, as Shakespear would say “Forsooth! We needest the most due of processeth!” (Actually, I didn’t read Shakespear in college so much as “Shakespeare for Dummies”).