MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

A Quick Due Process Lesson for the President

It is well-established that everyone within the United States, even those who may have entered illegally or over-stayed a visa, are entitled to Due Process.

Over the weekend, President Donald Trump expressed frustration with the legal process afforded those accused of entering the country illegally.

Despite the President's appeal to "Law and Order," it is well-established that all those within the United States are entitled to the constitutional protections of Due Process, even those who may have entered the country unlawfully.

Let's start with the Constitution's text. The Fifth Amendment provides that "No person shall . . . be deprived of life, liberty, or property, without due process of law." Of note, this protection applies to all "persons" -- not merely to citizens. This point is reinforced by the Fourteenth Amendment, which affirms that the class of "persons" entitled to constitutional protection encompasses citizens and non-citizens alike. (It does this by, among other things, noting which persons constitute citizens.)

As Steve Vladeck noted on Twitter, the Supreme Court has made quite clear that this language means what it says, and applies to aliens on U.S. soil. So, for instance, in 1982 the Court held:

Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U.S. 206, 212 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

As the Court's citations indicate, the principle the Due Process applies to non-citizens was not a late-Twentieth Century innovation. As the Court had explained in 1896:

'These provisious are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws.' Applying this reasoning to the fifth and sixth amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.

Here the Court was relying on prior precedent from 1886:

The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:

Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws.

Of note, the late-Nineteenth Century Supreme Court was not particularly pro-immigrant, and yet the Court had no trouble recognizing that the Constitution's Due Process protections apply to aliens, even those accused of being unlawfully present. Indeed, one of the purposes of providing Due Process protections is to help make sure that those detained, deported, or otherwise sanctioned are, in fact, unlawfully present in the country.

Whatever one thinks about what the nation's immigration policy is, or should be, the Consitution provides that all persons in the United States are entitled to Due Process, and true respect for "Law and Order" requires respect for the Constitution.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • M.L.||

    That's why a border wall and other reforms are necessary. The president is leading a healthy national conversation on these matters.

    Why Israel's Border Fence Worked

    Border fence in Israel cut illegal immigration by 99 percent

  • NToJ||

    I don't agree that when the President speaks about "with no Judges or Court Cases" do stuff to people within the jurisdiction of the United States, he's "leading a healthy national conversation on these matters".

  • M.L.||

    How much experience do you have with the half of the country that is below average IQ and SES?

  • NToJ||

    Since like all humans the number of people I have experience with is infinitesimal relative to the set of "half of the country that is below average IQ and SES", I can say confidently that I have approximately as much experience with that set as every other American, including you.

  • M.L.||

    What percentage of your life experience and social connection has been with the one half, versus the other?

  • NToJ||

    Hard to say since most people don't advertise their IQ or SES, however defined.

  • M.L.||

    lmao. Back to the ivory tower with you.

  • rferris||

    Immigrants do not actually get a day in court. They get a hearing in front of an appointed hearing officer.
    Because most do not show up for the hearing we are now seeing an attempt to follow the rule of law and consistently enforce immigration laws.

    So for an illegal immigrant, due process is a hearing where the outcome is mostly predetermined by the politics of the day and not the law as written.

    So the Donald should be proposing instant hearings to go with his instant deportations so they could have their due process before being promptly deported.

    SOOOO, we need to hire more hearing officers to make a quicker job of this!

  • Nuwanda||

    "...we need to hire more hearing officers to make a quicker job of this!"

    That, I suspect, is what Trump meant. Even if he didn't, it's the answer. And it's the way plenty of other Western democracies do it. The idea that you ask someone with illegal-entry status to kindly come back in a couple of months for a court date is just nuts. But it's part of the conceit of the open borders crowd.

    Due process! they shout, all the while knowing, wink-wink, that the vast majority of those scheduled for their day in court will never, wink-wink, appear in court. They're not interested in due process at all; its just another way to open the border.

  • Martinned||

    "That's why"? Because god forbid someone might have some rights?

  • M.L.||

    No, because it will prevent and put an end to the ongoing commission of 50,000 crimes per month. And with that, the astronomical costs that ensue, justice system-related and otherwise.

    Come on, you've got to be smarter than this.

  • regexp||

    ongoing commission of 50,000 crimes per month

    Citation please.

  • M.L.||

    That's just the ones who are caught. But hey, it used to be higher!

  • NToJ||

    So the crime you're talking about is illegal entry into the United States, a misdemeanor. Have you ever sped?

  • M.L.||

    The point isn't that sneaking across the border is such a grave crime (although, it is closely associated with and facilitates many serious crimes).

    The point is to secure the secure border and control who comes into the country -- without the ridiculous expense of housing a massive population of transients and installing a new army of bureaucrats to administer their criminal cases and other affairs.

  • RCCA||

    There are people who don't listen to reason. They have no respect for the rights of citizens, the rule of law, or facts. They are unwilling to actually look at data on the impact of illegal immigration on education, the expenses, the consequences. In many cases they, the open border advocates, actually want to see the US fail as a nation. Unlimited immigration is one way to insure that collapse. I've realized they are not debating in good faith.

  • M.L.||

    True. But NToJ isn't arguing from bad faith so much as arguing for fun . . . and perhaps from a cherished and quirky set of views on things.

  • NToJ||

    "They have no respect for the rights of citizens, the rule of law, or facts."

    Anyone who commits a misdemeanor is lawless? Give me a break.

    "They are unwilling to actually look at data on the impact of illegal immigration on education, the expenses, the consequences."

    So tell me them. I'm perfectly willing to hear whatever evidence you have. From my perspective (in Texas), big business depends on illegal immigration. Texas Chamber of Commerce types (Republicans) support expanded immigration and fewer limits on illegal immigration. See here, for instance.

    The reason your sale is so hard is because anti-illegal immigrants have been sounding the doomsday bells forever, and the country has neither collapsed nor is collapsing. Illegal immigration is actually trending down. Crime is down. Reagan's amnesty didn't destroy the country.

  • M.L.||

    Gosh, well if big business benefits from it, then it must be in the best interest of the American people. So glad we could clear that up.

  • NicholasStix||

    Unresponsive and irrelevant.

    He has a right to be in this country; illegal human beings don't.

  • John Rohan||

    Not always a misdemeanor. It's a felony if the person was previously deported.

  • Cranedoc||

    "No person may be deprived of life, liberty, or property without due process of law."

    So, if border officials expell illegal border jumpers, which of those things are they depriving them of? Not life, not liberty, and not property. You don't need due process to send someone home!

  • James Pollock||

    Where did you find all these perfect bureaucrats, who deal with all those illegals without ever once accidentally hassling a citizen or anyone else with a valid legal right to be present?

    Because I can think of a few other places where we might want to put them to work. Maybe they can be put in charge of issuing carry permits to only the people who won't misuse them, or processing civil forfeitures from only the people who got their stuff through crime, or only hassling the airline passengers who are terrorists. I think these mythical bureaucrats of yours who never make a mistake should be working TSA. I mean, they're going to have to be at the airports anyway, to catch all the people who fly in legally and then overstay their visas...

  • MatthewSlyfield||

    Israel's entire boarder is is significantly shorter than the US/Mexico boarder, not to mention all of our coastal areas along the Pacific ocean and Gulf of Mexico. You can't build a wall on the coasts.

  • Lee Moore||

    "You can't build a wall on the coasts."

    The Athenians would beg to differ :

    'Though all else shall be taken, Zeus, the all seeing, grants that the wooden wall only shall not fail.'

    And in fact the Australians have successfully deployed a seaborne anti-illegal immigration wall very successfully - amidst traditional lefty howls of protest (naturally.)

  • Bob from Ohio||

    "You can't build a wall on the coasts."

    Its called a Navy and a Coast Guard.

  • James Pollock||

    The same Navy and Coast Guard that have been keeping Cubans from coming here?

  • Bob from Ohio||

    No defense method is fool proof.

    Coming by boat will be harder than walking over an unprotected border.

  • James Pollock||

    Bob, if your self-identification is accurate, you're a long way from the coast, so maybe you want to concede on this one.

  • Bob from Ohio||

    I can see the North Coast from my office.

    I am not sure what my location has to do with anything. Immigration by see is possible [see Europe] but its still not as easy as walking over an unprotected border.

  • Bob from Ohio||

    sea

  • James Pollock||

    " Immigration by see is possible [see Europe] but its still not as easy as walking over an unprotected border."

    The coast IS unprotected border, Bob. That's kind of the point.

  • NicholasStix||

    "Immigration by see is possible [see Europe] but its still not as easy as walking over an unprotected border."

    In both cases, you abused the term "immigration." You meant, "invasion."

  • Bob from Ohio||

    We are a significantly larger and richer country. The length of the fence may be longer but so are the resources available to build it.

  • JunkScienceIsJunk||

    Then you pay for it. Hands off my wallet. Thanks in advance.

  • James Pollock||

    Airplanes can fly at 30,000 feet.

  • Bob from Ohio||

    People without visas will not be able to get on a commercial flight.

    That leaves smugglers. I admit that some immigrants will get thru. So what?

    Its all about making it more difficult. No defense method can stop everything.

  • James Pollock||

    You don't need a US visa to fly to Canada, Bob.

    That's ignoring that roughly a third of illegal immigrants arrive with a valid visa in hand, and then overstay, Bob.

    I'm sorry that facts don't support your conclusion, Bob.

  • Bob from Ohio||

    "You don't need a US visa to fly to Canada, Bob."

    You need a Canadian one. You think Canada is giving visas to poor Guatemalans?

    The wall is not intended to, nor could it, have any impact on overstaying visas.

  • James Pollock||

    "The wall is not intended to, nor could it, have any impact on overstaying visas."

    So if the wall is not intended, nor could it, prevent illegal immigrants, why are you so all gung-ho to spend my money building it? Oh, sure Mexico's going to pay for it EVENTUALLY, but in the meantime, taxpayer funds will be needed.

  • Harvey Mosley||

    If that is your position i anxiously await for you to argue against every gun control law ever.

  • tzx4||

    Trump promised more than once that Mexico would pay for the wall. Don't you think we should hold him to it?

  • Think It Through||

    I find it hard to believe that Israel's boarder is significantly shorter than the US/Mexican boarder, since the average Israeli male is 175.6 cm and the average Mexican male is 169 cm. I don't see any reason why people who rent rooms should deviate from this average.

  • ||

    ^^ This guy gets it!

  • Brett Bellmore||

    The question isn't the absolute length of the border, but the length of border per capita, or in relation to GDP.

    By both measures, our border is much shorter. A 1/32" per citizen, vs Israel's quarter inch per citizen.

    We can much more easily afford a border wall than Israel, though they do not find it burdensome, either.

  • Martinned||

    Who cares? After all, the Mexicans are supposed to pay for it...

  • Benitacanova||

    Length is important but it's girth that really matters.

  • James Pollock||

    It's how you use what you got that matters.

  • M.L.||

    So what? Israel's land border totals 632 miles. Their population is 8.5 million and their GDP is 318 billion. That's 13,450 people per mile or $503 million per mile.

    The Southern US border is 1,933 miles, but population is 326 million and GDP is 18.6 trillion. That's 168,650 people per mile, or 9.62 billion per mile.

    So, relatively speaking, a Southern US border wall is 1/12th to 1/20th the undertaking of an Israel border.

  • James Pollock||

    So, the theory is that you're going to fortify one part of the border, leave the others unfortified, and none of the people trying to sneak in will think of getting a boat? Or an airline ticket?

    Nope, can't see any reason why that would be a stupid waste of money. None at all.

  • M.L.||

    James, maybe you don't read good or are willfully obtuse?

    Israel put a stop to virtually 100% of illegal border crossings, primarily by doing the very thing that you are scoffing at in a derisive and sophomoric fashion. As if you're so smart? Who's the dummy here?

  • James Pollock||

    Israel stopped illegal border crossings by requring a visa to fly to Canada? Why wasn't that on the news?

  • Bob from Ohio||

    "Or an airline ticket?"

    Without a visa, no commercial carrier will allow you to get on a commercial flight.

  • James Pollock||

    Turns out, we don't get a say on who can fly to Canada.

  • Bob from Ohio||

    If Guatemalans want to go to Canada and can get a visa, god speed.

    Why won't they just stay there?

  • James Pollock||

    "Why won't they just stay there?"

    Because nitwits want to spend all the border money on just one border, and pretend that the other borders will work magically.
    And when anyone points out that fortifying just one of your borders is immensely stupid, they get all outraged and stuff because obviously you don't need to defend the seacoasts... sound familiar?

    Here's the thing.
    The best way to deal with would-be immigrants is to put them to work and make taxpayers out of them.
    Skipping all the way down to the worst way to deal with them, we have spending a big pile of money on a wall that wouldn't keep anyone out, while continuing to fund removals at a rate that would need 20, 30, maybe 40 years to deport all the illegals who are already here, even if new illegals stopped arriving tomorrow.

  • bernard11||

    I've gotten on lots and lots of international flights without a visa, all perfectly legal.

  • Lee Moore||

    Presumably because you were travelling to somewhere which doesn't require visas for US citizens, or which has some kind of arrangement similar to the US visa waiver scheme. In other words the airline has satisfied itself by looking at your passport that you will be admitted when you get to the far end, so that they will not be responsible for repatriating you.

    Sometimes they will insist that you show them your exit ticket from the country you are flying to, because that country's "no visa needed" rule requires you to have an exit ticket.

    So Bob's point is wrong in detail (you don't always need a visa) but right in substance. If the commercial carrier is responsible for repatriating you if you are not allowed in at the far end (as it usually is these days) they won't let you on the flight unless you can show you are entitled to enter when you do get to the far end.

  • tzx4||

    Keeping black market drugs out is easy and winnable too, right?
    Ladders and tunnels come to mind, as does the human labor intensive Berlin Wall.

  • ||

    Ask the Italians how they did it with Libya before Hillary and Obama destabilized the region.

    It's doable.

  • Moo Cow||

    "I like taking guns away early," Trump said. "Take the guns first, go through due process second."

  • M.L.||

    Hm. Do you think the FBI should have done anything at all when they were warned about Nikolas Cruz' intentions? Too busy with politics I guess. How about school and local officials?

    How about the undercover FBI agent who was present at the Garland TX shooting but did nothing?

  • zackthedog||

    It's worth noting that Israel's border fence is 440 miles long in all, most of it through open, arid terrain. The US-Mexico border is about 2000 miles long and the geography is considerably more complex.

    As for a "healthy national debate," well, I suppose it's worth pointing out every once in a while that everyone is entitled to due process, lest people like our President forget.

  • judi online||

  • BillyG||

    How does the due process requirement impact the historical policy of turning people back "at the border". They can't be turned back if they aren't already inside the US. But your argument seems to say they can't be turned back without due process either. So once someone steps one foot onto US soil, what is the minimum required?

  • Ron||

    due process can be as simple as I see you crossed the line you are illegally here and must go back. there is no law that says it must be a lengthy prosecutorial process in fact the constitution says it shall be speedy.

    However when republicans proposed putting more judges on the border to solve the separation and speed issues Chuck Schummer said no, because if we did that what would the left have to scream about

  • James Pollock||

    In order to preserve law and order, we're going to have to dispense with law.

  • Rip Murdock||

    More: .....What would you do? Cut a great road through the law to get after the Devil?

    Roper: I'd cut down every law in England to do that!

    More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law for my own safety's sake.

    A Man for All Seasons-Robert Bolt

  • Bob from Ohio||

    Never understood how a law could stop a supernatural Devil.

  • Eidde||

  • James Pollock||

    "Never understood how a law could stop a supernatural Devil."

    Presumably, the same way claiming to be Jesus does it.

  • Negi||

    The question in immigration cases is not that due process need be followed but rather what process is due. In immigration cases it is reasonable that the only process due is administrative.

  • Martinned||

    Coming from someone who will (probably) never have to ask for asylum, I can see why you might think that that's "reasonable"...

  • retiredfire||

    Straw man - the vast majority of illegal invaders don't qualify for asylum.
    Just like legal immigration, there is a process for that. The ones, truly in need of it, are rare.
    Most of the ones requesting asylum are just plain invaders, who get caught and have been told that asking for asylum might work to let hem slip by.

  • Sarcastr0||

    There's a process, but this whole post is about Trump says we don't need no steenking process!

    Invaders eager to do work in our fields is a strange sort of invader.

  • James Pollock||

    "...the only process due is administrative."

    Have another look at Article III. Where is judicial power granted?

  • ||

    If we're going to take the ridiculous position that due process applies to all persons on U.S. soil without qualification, then we need to have extremely strong border protections such that they don't reach U.S. soil in the first place.

  • creefer||

    It's always been the case, and has never been ridiculous. Without due process protection, what's to keep anyone from accusing someone of being here illegally and immediately having them shipped to another country, regardless of actual status.

  • ||

    Sorry, I should have clarified. They should be allowed to claim and have it be proven that they are not here legally. But they shouldn't have any substantive rights beyond that. No right to lawyer, no right to have their illegitimate spawn educated, fed, or healed, or anything else.

  • smilerz||

    "No right to lawyer"
    that's not due process

  • ||

    Sure it is. Unless you're going to argue that the U.S. had no due process prior to 1963.

  • Martinned||

    In many respects it plainly didn't.

  • NToJ||

    You're getting confused. Gideon v. Wainwright was a substantive due process holding incorporating the 6th against the states. It had nothing to do with "due process" generally. But since we're talking about immigration (i.e. feds) the Sixth Amendment applies to "the accused".

  • ||

    I'm not getting confused. He said having no right to a lawyer is not due process. That was the case in much of the U.S. until 1963.

  • NToJ||

    That wasn't the process due in the states until 1963. But the Sixth Amendment predated Gideon and the 14th Amendment.

  • ||

    We're talking about whether there is a right to court provided lawyer, not to pay for one if you can.

  • rferris||

    In most US cases the right to a lawyer means the right to a public defender who at best can do a plea bargain.................if you are innocent you are screwed!

    Token due process in place of actual right helps no one

  • Ghost of Patrick Henry||

    Except that they are not being denied life, liberty or property.

    They are being denied entry and returned to their home country.

  • Lee Moore||

    Indeed. Adler seems to have spotted "person" and "due process" but missed the words in between. He's displaying signs of Stockholm syndrome these days. We get it - your dinner invitations are drying up after your Obamacare faux pas.

    There's undoubtedly an interesting article to be written about when and whether arrest and deportation involves an impermissable deprivation of liberty. Arrest, prima facie, seems to be a deprivation of liberty, but the police are allowed to do it without the prior intervention of a court, so the due process required for an arrest seems to be not very onerous.

    So as well as making a good case for a wall - thanks for that - Adler owes us a serious article about arrest, due process and the deprivation of liberty, rather than a frivolous virtue signalling one.

  • NToJ||

    They are being denied liberty in the sense that they can be convicted of a crime.

  • Lee Moore||

    What, "with No Judges or Court Cases" ?

    Meanwhile back on Planet Earth, they can only be convicted of a crime if they're brought before a Judge and a Court. Whereas if they are merely arrested and deported, we are still owed a sensible article by Adler as to how this infringes their due process right to liberty.

  • NToJ||

    The deportation carries with it a stricter penalty if they're caught re-entering.

  • James Pollock||

    "There's undoubtedly an interesting article to be written about when and whether arrest and deportation involves an impermissable deprivation of liberty"

    You're confused about who due process protects.
    Suppose they scoop you up, decide among themselves without your input that you are in the country illegally, decide (again without your input) that you are a citizen of Antarctica, and drop you off at McMurdo Sound in the jeans and t-shirt you were arrested with. Have you got a complaint of any kind with any of this?

  • Lee Moore||

    Well that's what I'm hoping for a sensible article about. Clearly, being dropped at McMurdo Sound in jeans and T shirt involves a serious risk of deprivation of life, so let's dial back the hypothetical, and have you being deposited somewhere balmier. So deprivation of life is off the table now. You got your jeans and T shirt, so you're OK on the property front. So we're left with liberty.

    So an analogy might be - the cops arrest you on (reasonable) suspicion of drunk driving, take you back to their den, and decide that you aren't drunk so they're not going to charge you. Or you were a bit drunk but they can't be bothered to charge you. So they show you the door to the street and say "Get lost." They don't drive you back to your car.

    Do you have a complaint that you've been deprived of liberty without due process ? You've been deprived of liberty, briefly, to be sure. But the cops reasonably suspected you of being a criminal. Is that enough due process for the liberty you've been deprived of ?

    You may have some other legal claim - dunno what, but maybe - but it's not a due process deprivation of liberty claim.

  • creefer||

    Being denied entry is different than due process for those already here.

  • smilerz||

    you're begging the question - how do you know that they aren't allowed entry to the US without due process?

  • James Pollock||

    What? Surely nobody in the government would LIE about something like that, would they? And since they also never make any mistakes...

  • Martinned||

    And "entry" isn't a type of "liberty"? (As in: the freedom to go somewhere.)

  • Lee Moore||

    Sure, if you're prevented by the government from going somewhere you have a legal right to go, then they're interfering with your liberty. But if they prevent you going somewhere where you don't have a right to go - eg rocket base, Miley Cyrus' bathroom, the authorised persons only area of an airport, then, no, they're not interfering with your liberty.

    You could say, of course, that the government might be interfering with your liberty by making some places where you'd like to go, places where you're not allowed to go. This would be the "there should be no immigraton laws" position. And yes, under that position, interfering with folk trying to get into the US is inerfering with their liberty. Because they have a right o be here.

  • Eric VonSalzen||

    Doesn't this beg the question? What is the dispute that "due process" is supposed to resolve? If the law says that only someone who has a properly issued visa can enter the US, and the allegedly illegal immigrant admits that he doesn't have a visa, then what would the trial or hearing be about? As I understand it, the delays in resolving these cases involve claims for asylum. Certainly due process should be afforded to address such claims. But Congress (or perhaps the President?) could expedite that process, for example, by requiring that claims for asylum can be made only at a US embassy or consulate, or at an official US border crossing station; an asylum claim made by someone caught sneaking into the country would not be considered.

  • TW||

    I agree, I would also add that any asylum claim from someone not from and who traveled through Mexico or Canada without requesting asylum there could also be summarily denied on the grounds that they did not request asylum in the first safe harbor that they came to.

  • James Pollock||

    "Doesn't this beg the question? What is the dispute that "due process" is supposed to resolve?"

    Due process resolves abuses of authority and mistakes.
    Without it, the government can scoop up anybody, claim they're here illegally, and remove them. I would find it disconcerting if the government grabbed me off the street, decided I was a foreigner, and dropped me off in some other country. Due process gives me a chance to prove I'm a U.S. citizen before I get sent away.

    A person from, say, Cuba who was in the country illegally and got picked up at work at Wal-Mart might not object to being deported, but might not want to be sent to Tijuana, even if they admitted to being in the country illegally. Due process would give them a chance to get sent to the right country.

    Due process also lets someone who appears to be in the country illegally show that there is some aspect of American law that allows them to stay. Resident aliens are supposed to carry proof of their resident alien status. Losing your wallet to a pickpocket or a house fire shouldn't be a deportation event.

  • Brett Bellmore||

    Ah, but exactly what process is due? That's always the question when one invokes "due process".

    I would say an opportunity to claim, under oath, before a neutral arbiter, that they are legally present in the country. That should take what? Five minutes each?

    If they don't claim to be legally present, no further hearings are necessary, deport them.

    If they do so claim, then further proceedings are appropriate to confirm or falsify the claim. In the latter case, to be followed by prosecution for perjury.

    You could even put the neutral arbiter at the border crossing, so save time. In that case I would, however, urge that anybody mistakenly caught up in the sweep be fully compensated for their trouble.

  • smilerz||

    you missed the part about protection from self-incrimination

  • bernard11||

    I would, however, urge that anybody mistakenly caught up in the sweep be fully compensated for their trouble.

    Yeah. That'll happen.

  • Variant||

    You either have to read that as any persons anywhere (it says nothing about being on US soil) or as US Citizens.

    If the former ends up being true, then I suppose this law will be ruled unconstitutional.

    Libertarians beclown themselves in their quest to ensure the US has no enforceable borders. Of course, that would push their ideas even further into the shadows as the policy preferences prospective citizens sneaking in to the country would almost certainly not advance big "L" Liberal positions.

    Libertarians have always been a self-destructive bunch, though...

  • Brett Bellmore||

    Not always to this extent, certainly. I was very active in the libertarian movement from the late 70's through the mid 90's, and this open border fanaticism wasn't particularly noticeable back then. Sure, we thought borders should be open: After we'd gotten rid of the welfare state, and the world was at peace! We weren't nuts, after all.

    When exactly did the libertarian movement go mad on this topic? I kind of dropped out of it after Harry Browne's first disastrous campaign.

  • rferris||

    Only recently, led by the semi-leftist staff at Reason.....................

  • KevinP||

    I am a legal immigrant and naturalized citizen and opposed to open borders for two reasons.

    1) The welfare state that we have provides a great deal of my taxpayer money to low income immigrants who are a net negative, especially if they have children. Their earnings and economic simply do not offset this.

    2) The said immigrants become political supporters of the welfare state and the Democrats' tax and spend regime.

    Both of these infringe upon my liberty and pocketbook.

  • ||

    Exactly. The people who claim low-IQ, low-income immigrants are a net boon are only including taxes paid versus tax supported social programs received, and exclude the costs of their children and generalized costs of society attributed to the immigrant.

  • NToJ||

    If your objection to them is that they are "net negative" why limit it to illegal immigrants? Wouldn't you want to kick out citizens who are net negative, too?

  • ||

    Citizens, no, because they have a right to be here. But yes, my objection applies to legal immigrants too who fit into that category.

  • NToJ||

    They don't have to have a right to be here. If your problem was with people who are a net drain, wouldn't you want citizens to be kicked out, too? Why not just answer the question? I assumed you would jump at the opportunity to deport all liberals?

  • ||

    Do you really not see the difference between a kid who refuses to move out of his parents' house and a squatter who takes up residence in the basement? The former are our people whether we like it or not. Immigrants are not.

  • NToJ||

    ARWP just admitted that godless gay liberals are his people. I knew it.

  • JoeBlow123||

    That is not actually what is being discussed though, is it? No one said anything about citizens, you made it a topic. Furthermore, you did not dispute the fact they are a net drain on the economy and vote for progressive policies. Lets not forget sneaking into a country illegally and the likely forgery/falsification of documents to prove legal residence. But hey lets forget crimes we do not care about!

  • KevinP||

    The President's tweet does not contain the words "due process".

    But since we are discussing it, what due process should apply to a non-citizen standing just outside the physical border of the US?

    What due process should apply to the same non-citizen who illegally steps across the physical border of the US and has no right to remain in the US?

    I personally think administrative due process is sufficient:
    Ask the non-citizen to provide proof of US citizenship or legal residence. In good faith, make a check of available databases of legal immigrants and visitors.
    If proof is not provided or evidence cannot be found, simply move the non-citizen back across the border the same day.

    Due process always depends upon the context. You are not entitled to a jury trial and a Supreme Court appeal for a traffic ticket that carries only a fine.

  • loveconstitution1789||

    Despite the President's appeal to "Law and Order," it is well-established that all those within the United States are entitled to the constitutional protections of Due Process, even those who may have entered the country unlawfully.

    Soldiers of foreign nations would not be entitled to remedies of Due Process via the courts. The President would absolutely be within the War Powers Act to stop the invasion.

    That is what Trump is equating the immigration invasion to. Its a stretch but no by much.
    He then declared migration "a human right we will defend,"

    Mexican presidential candidate Andrés Manuel López Obrador (AMLO) declared mass immigration to the United States a "human right" for all North Americans during a speech Tuesday.
    "And soon, very soon — after the victory of our movement — we will defend all the migrants in the American continent and all the migrants in the world," Obrador said, adding that immigrants "must leave their towns and find a life in the United States."
    He then declared migration "a human right we will defend," eluniversal.com reports.

  • ||

    Mexico is an enemy state. We should have dispensed with them long ago.

  • mad_kalak||

    Define "dispensed"?

  • ||

    An ICBM with a tactical nuclear warhead aimed at Mexico City would do the trick nicely.

  • regexp||

    Its comments like this one that makes it impossible to take anything you say remotely seriously.

  • Rev. Arthur L. Kirkland||

    He's still better than Artie Ray Lee Wayne Jim-Bob Kirkland.

    Just ask Prof. Volokh.

  • VinniUSMC||

    Artie, just go away, and take your troll alt with you.

  • Rev. Arthur L. Kirkland||

    Artie, just go away, and take your troll alt with you.

    Why not petition Prof. Volokh to ban me, VinniUSMC?

    Before I am asked to leave, a question: What level of responsibility do you feel for the fact that the United States has not won a war in more than 70 years, settling instead for a pansy-sack full of vague draws with ragtag irregulars across the globe, despite nearly unfathomable taxpayer-funded resource advantages?

    I figure guys like you are a huge part of the reason, but I want to give you a chance to tell your side of the story.

  • JoeBlow123||

    Rev you are a massive moron. I still cannot tell if you are a troll account or not. If you are not, then you are a sad excuse for a human being. Actually, you are a sad excuse for a human being either way. I can understand thinking American militarism is foolish, but actively taunting your own countrymen the way you did is straight traitorous.

    *shrug* I am fairly sure you are not married and have not kids so have fun being a lonely loser.

  • Rip Murdock||

    Since Free Republic (where the alt-right and apparently persons like ARWP and others feed on each other) is down, they have decided to leave their poop here.

  • mad_kalak||

    Any war with Mexico would increase illegal migration here are we made their home country unlivable by killing people and breaking things.

    Let's just build a wall, and call it a day.

  • bernard11||

    Why would you call a wall a day?

  • mad_kalak||

    Speaking figuratively.....

  • NToJ||

    The United States would become an enemy state to me, if it were to do something this insane and immoral.

  • ||

    Right, because you're a citizen of the world type whose loyalty is not to America.

  • NToJ||

    Is there anything the US government could do that would cause you to take up arms against it?

  • ||

    Yes. Try to take our guns.

  • rferris||

    Stupid comment

  • CJColucci||

    Mexico is an enemy state. We should have dispensed with them long ago.

    We did. Most of the immigrants come to territory we stole from Mexico in the 19th century. Maybe if we gave it back, they'd stay there.

  • rferris||

    Wow, repeating Chicano activists lies. Mexico had so few citizens in the west that their claim is specious at best. If they have a claim, then why would not the native Indians claims trump the Mexican claims as they are both based on the theory of first arrival??

  • CJColucci||

    We fought a war with Mexico and, after negotiations, took over large chunks of territory that no one had previously asserted was United States territory (a few areas around the border were disputed, but not the bulk of it). Mexico may not have heavily populated the territory, but most of it was recognized, by the United States in particular, as Mexico. We wanted it, we took it. Like almost any other country that wants contiguous territory and is strong enough and ruthless enough to take it,
    As for the claims of Mexico v. the original settlers, that's between them. If we can assert a right to take something from Mexico because we can, we can hardly condemn the Mexicans for taking it from the native Americans because they could.

  • Martinned||

    O, good, here I was worrying that America had gone completely insane...

  • Eidde||

    "When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came."

    I'm not sure if he's including immigration "judges" in that - they're not Art. III judges.

    I think Brett Bellmore above had the right idea - throw them out unless the alleged illegal immigrant swears (or affirms) that they're lawfully in the U.S., in which case check out their claim, and if it doesn't pan out, prosecute them for perjury.

    Compensate legal immigrants who are wrongly charged with being illegal.

  • mad_kalak||

    We could do what Hungary did with its border fence, which is put in well inside the border. The are between the fence and the foreign border is called a "transit zone." When an illegal migrant is picked up inside of Hungary, he is transported to one of the "transit zones" through one of the border gates. Legally, this is not an act of deportation, but detention. Migrants then present an asylum request from barracks outside the fence, but while still inside Hungary, OR they are free to leave the same way they came in. Many choose to leave rather than wait for their asylum request, which prevents overcrowding and a flood of requests, as migrants move on rather than wait through the legal process. It's really ingenious.

  • Martinned||

    It's also illegal under EU and ECHR law, but I suppose that needn't worry the US.
    (Since they've already given up on their "leadership role" on human rights ages ago.)

  • Eidde||

    Yeah, we can carve out a slice of Texas (there would still be plenty of Texas left) and call it "A Taste of America." Put illegals there while they challenge their deportation or seek asylum.

  • Dariush||

    "Yeah, we can carve out a slice of Texas (there would still be plenty of Texas left) and call it "A Taste of America."

    Yeah, you can go fuck yourself first, leave Texas out of this! It's bad enough we're being infested by Californians. We don't want either of them. Send 'em to New Mexico, we're all full.

  • mad_kalak||

    The source I read about said what Hungary was doing wasn't illegal. Unethical (perhaps), but not illegal. Migrants just move onto Germany. I'm not sure the approach would work here as the illegal aliens wouldn't move onto Canada.

  • Bob from Ohio||

    "It's also illegal under EU and ECHR law, but I suppose that needn't worry the US."

    Why should EU law worry the US?

    Do you worry about US law as you go about your business?

  • Martinned||

    Like I said, it shouldn't. (Unless the US cares about human rights in some general sense, separately from whether a particular right is recognised under the US constitution.)

  • retiredfire||

    First, you'll have to find where that right exists in the Constitution.
    The author doesn't even try to claim it exists, there, just that it is "well-established", which is what separate-but-equal, and Dred Scott is not a citizen, were, for a time.

  • KevinP||

    Would you like a beer with your sneer?

  • bernard11||

    Because whatever Viktor Orban does is worth emulating.

  • CDRSchafer||

    We're trying to give up our suckership role as we can't afford it.

  • Bob from Ohio||

    "true respect for "Law and Order" requires respect for the Constitution"

    Liberals stopped having "respect for the Constitution" a long time ago. No reason to get excited about a tweet from a lay person, president or not.

  • apedad||

    Actually it seems like us libbies/progs are quite respectful of the Constitution and all its authorized methods for addressing and changing the government.

    Several amendments ensure the right to vote for minorities, women, and people over 18 (clearly progressive measures).
    Court decisions have been progressive (e.g. Miranda, Plessy).
    Lots of environmental laws.

  • Eidde||

    I suppose Plessy v. Ferguson *could* be seen as having progressive aspects - after all, it allowed the states to regulate the practices of private businesses in the name of a higher social good, in contrast to the free-market fundamentalists who would let railroads seat their passengers any darn place.

  • apedad||

    Actually I was thinking of Brown/Education and got mixed up with Plessy.

  • mad_kalak||

    The last time progressives respected the proper way to change the constitution was Prohibition and its repeal. Since the Warren Court, it's been easier to just change the interpretation of the pre-existing social contract. Why go to the trouble to amend the Constitution, when all you need is 5 Justices on your side? That Courts have neither the purse nor the sword to implement decisions, and that courts cannot transcend the cultural conflicts of the society that produced them is of no mind to those drawn to the Supreme Court like flies to fly-paper. The situation puts conservatives in a conundrum. Either they enforce the Court's decision, and thus the "rule of law," or they ignore it and stop being doctrinaire conservatives who support the rule of law as a matter of principle. The Andrew Jackson approach appears to be where populist movement conservatism is going, through Trump has actually been pretty good about obeying courts, even unblocking twitter followers.

    Anyway, you're mistaking taking applying the rights and the rule of law that is IN the Constitution (what conservatives respect and support) with the creation and then support of rights (and the rule of law supporting them) for rights that are NOT found in the Constitution. The right has just decided that "if you can't beat 'em, join 'em" and are litigating for their own version of newly created rights these days.

  • James Pollock||

    "Anyway, you're mistaking taking applying the rights and the rule of law that is IN the Constitution (what conservatives respect and support) with the creation and then support of rights (and the rule of law supporting them) for rights that are NOT found in the Constitution"

    I actually remember when you could take a conservative seriously when they complained about "activist judges" "legislating from the bench". Nowadays, the complaint is that they won't legislate from the bench they way it was hoped they would... Darn that Chief Justice Roberts looking at the ACA and ruling that it was an exercise of the taxing power authorized to Congress, just because the people that wrote it wrote so that it would be an exercise of the taxing power authorized to Congress. We wanted him to vote to overturn it!

  • Bob from Ohio||

    "Nowadays, the complaint is that they won't legislate from the bench they way it was hoped they would"

    Yes, we have evolved.

    Its a sucker game to insist on adherence to judicial standards. We want results now.

  • Onslow||

    You think the ACA penalty is a valid tax under the text of Art. I, s. 8, cl.1?

  • rferris||

    A very partisan and ignorant post ( Pollock). It was written with no thought that it was a tax. Everybody's jaw dropped when Roberts made up from thin air a basis where the unconstitutional ACA could pretend to be constitutional..........pretending it was a tax.

    You are just making up stuff that is not true to support a position, which must be rationally untenable or you would stick to the truth.

    Roberts was creative in his novel interpretation, you are just dishonest in your characterization that it was what congress intended when the congressional record plainly reveals that it had not entered the mind of Obama and company that the ACA was a tax.

    "We" wanted an honest review of the law congress passed, not a creative approach to male an unconstitutional law appear constitutional.

  • James Pollock||

    "A very partisan and ignorant post ( Pollock)"

    I thank you for accurately labeling your comment for my convenience, though I assure you I could have readily reached that conclusion by its contents.

  • retiredfire||

    Yes, many progressive regressions have been by court ukase.
    What that means is that you couldn't get popular support for your communist ideas and had to turn to communist judges to force the rest of us to submit.
    And we are getting to where we are going to refuse to submit...and you won't like the results.

  • vaadu||

    The US should send the illegals home to wait for their court date. Once that date occurs the illegal would go to a facility in their home country where a 2-way video conference of the proceedings would provide allow them the opportunity to plead their case.

  • commentator||

    Deport-first-ask-questions-later and treating people as guilty until proven innocent is definitely not any constitutional due process, and in some cases you'd be sending asylum seekers back to places they could be killed before their first court date.

    And that's all ignoring the logistical nightmare you just created in those two sentences, with the expense of maintaining countless foreign 'facilities' and the uncertainty of whether other countries would even continue allowing the US government to operate a part of their court system there.

  • ||

    So it's our responsibility to clothe, feed, and provide medical care to every migrant who shows up at our doorstep?

  • commentator||

    It's generally your responsibility to prove someone is guilty before passing the sentence, not after.

  • Gasman||

    asking, whether politely or with threat of force, someone to leave your property is not passing sentence. It is defending your home, your family and your property. Due process for a squatter on your lawn is the sheriff telling them to scram or take a ride to the local jail.

    I hope your see the parallels here. It's all the same when that home is the country, and that family is the citizenry.
    Those who trespass get shown the door, and if they don't take that option, they go to the detention center.

  • commentator||

    The metaphor doesn't work. Actual property owners rent out apartments to these metaphorical 'squatters on the lawn.' Actual business owners employ them. They're not trespassing on anyone's private property in reality, they work and pay rent like everybody else.

    Regardless, due process is there to keep people who have a right to be here from being deported unlawfully. Taking you and your family out of your home as 'suspected squatters' before you even get a chance to prove your case that you actually own it would be the parallel here.

  • rferris||

    When you rent you claim the rights of the property owner for most civil affairs. A mans home is his castle.............

    Most of your comment is nonsense.

    Your " parallel" is absurd...................your thought processes and reasoning powers put against an empty paper bag........paper bag wins.

  • NicholasStix||

    commentator|6.25.18 @ 3:30PM|#

    "It's generally your responsibility to prove someone is guilty before passing the sentence, not after."

    Wrong. This is not a trial situation. If someone is found on our side just past the border, and he cannot show that he has a legal right to be here, then he is presumed to be an illegal alien. I know you're going to persist in your fairy tale, but that's the way it works.

    And according to federal law, any non-citizen who is in the country legally must carry on his person at all times federal documentation attesting to that fact, or be liable to arrest as an illegal alien.

  • retiredfire||

    Deportation is not a sentence.
    It is returning the situation to what it was before the violation occurred. No fine, or jail time.
    Wouldn't most criminals like the idea of something like that when caught?

  • ||

    Yamataya v Fisher, 189 US 86 (1903)? Outlier? Basically, immigration was bypassing judicial process at the time by congressional statute?

  • tlapp||

    The wall stops the illegal activity. Make check points like a modern day Ellis Island. Fill out your applications and wait to be checked out before you enter then this entire point becomes moot. And my ancestors did exactly that when they came through Ellis Island

  • James Pollock||

    "The wall stops the illegal activity."
    That's your article of faith. Mine is that the wall just moves it.

  • Rev. Arthur L. Kirkland||

    The wall stops the illegal activity.

    That's the right-wing approach. Another approach would be to open the border, and if the right-wingers continue to press the bigotry and backwardness the backlash might include wholesale relaxation of immigration restrictions.

  • James Pollock||

    Historically, the biggest problem with immigration is that neither party has wanted to take on the expense of running operations needed to actually provide due process to, and then expel, all of the people who got here without following the proper procedure. It would be very expensive, and be a long-running operation, and produce untelegenic events like separating the sneakers-in parents from the born-here children.

    So they authorize enough ALJs to process about 400K removals per year, and ignore the fact that at that rate, if the border magically sealed overnight they'd only need 30 or 40 years to handle the backlog of removal cases for people who are already in.

    The obvious answer is to grant a new class of "legal resident" that is authorized to stay, and work, and be self-supporting but not eligible for welfare benefits or application for citizenship. That's too close to "amnesty" for hard-liners, though.

    So... just keep pretending that we're "tough on illegal immigrants" as we allow most of them to stay, I guess.

  • ||

    Even if they're not eligible for welfare benefits or application for citizenship, their illegitimate anchor baby children will be. As long as birthright citizenship exists and EMTALA and Plyer v. Doe remains the law, no deal.

  • James Pollock||

    Didn't you get YOUR citizenship because you were born here? Will you be backing up your beliefs and leaving soon?

  • ||

    Yes, but both of my parents are natural born citizens as well, which means I would have been a citizen even if I had been born overseas.

  • librich||

    By extension, people of other nationalities have a right to American health care, free education in America, food stamps and so on. This all follows from the root premise that we are the rulers of the world. Being overlord and steward for all nations and peoples, it is our responsibility to invade them or otherwise intervene in their internal affairs when we see they are on the wrong path. And we have, as well, a responsibility to all the world's people to care for them when they are in need.

  • M.L.||

    39% of black Americans favor immediate deportation

    17% favor detention pending case

    Only 20% favor Democrat-favored catch and release policy. Poll

    Keep it up, Libs!!

  • Jimmy the Dane||

    Here is a quick lesson - it is called "I don't care anymore".

    Throw them out immediately.

    Have mass round ups. Pack them on planes and send them back to wherever.

    You don't get to sit in this country for years pulling welfare, working illegally, in known violation of our laws.

    Illegal aliens are not entitled to an endless appeals system. I think one review by a CBP official is fine enough then get back on the boat/plane/or bus that is going to dump your law breaking behind back home.

    Come back again and yeah we will put you to work. In the desert of Arizona in a big giant work camp for violating our laws.

    Time time for debate is over. There is nothing to debate. There is nothing "undocumented" about entering our country knowingly violating the laws of our sovereign state.

    If you live in third world hell hole then here is the solution - fix it. That doesn't give you a "pass" to just sneak over here because we can run a functional government that provides for its citizens.

    And no I do not have a moral/ethical obligation to just give some rando from hell-holeistan the keys to the front door. My family has been here for six generations an built this country. You just can't waltz in now and enjoy the fruits of my family's hard work.

    Period. I'm done. Start mass deportations NOW!

  • Jimmy the Dane||

    Oh and before some soyboy out there starts talking about slavery. That is the only subset of historical immigrant that I think we owed something to. But that bill has been paid with a civil war, emancipation, citizenship, civil right experiments, racial preference, the welfare state (which has gone on too long) and many other public policy initiatives over the last 150 years.

    Yeah it wasn't fair to bring them over here as property. But it was also not an uncommon practice among the world. That was centuries ago, they got their freedom, already got paid reparations in multiple ways for more then 100 years so yeah that debt has been paid in full with a ton of interest.

    And I've never heard a true decedent over a slave say "boy I really wish I was back in hell hole- un by a ruthless dictator african country rather then be living in the US right now".

  • commentator||

    When you're talking about sending people to a "big giant work camp" you're opening yourself up for much worse comparisons than slavery.

  • Jimmy the Dane||

    No one is bringing them here against their will. In fact, they voluntarily did so (unless they literally were brought here by a third party against their will) but most illegals just waltz right into the country knowing exactly what they are doing. And there was nothing "illegal" about being a slave. In fact there was quite a complicated regulatory system for the registration and sale of property involving slavery. Some states even has minimum work related rules. It was all "legal" in the eyes of the law.

    An illegal comes here knowing that they are doing so contrary to the laws of our land and if they get one "free pass" home and so it again well don't feel bad for treating them like a criminal because that is what they are - a criminal. So "big giant work camp for them". They can make license plates. Work on farms that provide food for needy CITIZENS. Or other productive projects. We pay them a few bucks an hour and when they make enough money for their ticket home it is their choice to go back to hell-holeistan or keep on working in the work camp. I would even be benevolent enough to provide for some type of "point system" whereby some illegal proves their worth through enough work they could get on one of those liberal "paths to citizenship". Wouldn't be an easy one but why not make it available. That way all the "finest" Mexico are sending us at least have a chance.

  • ||

    Bravo.

  • Andrew Hyman||

    Professor Adler suggests that people who cut in line to get across the border are entitled to due process of law whereas the people who did not cut in line are not. Assuming he is correct, the question becomes: what exactly are those due process rights of an illegal immigrant?

    As long ago as Den ex dem. Murray v. Hoboken Land & Improv. Co. 59 U.S. (18 How.) 272 (1856), SCOTUS held that a person who owed a balance of money to the U.S. Treasury could be compelled to pay it without the exercise of the judicial power of the United States. Due process of law does not always require involvement of the courts. A significant factor in determining whether judicial involvement is necessary is what statutes passed by Congress say, and also what Article II of the Constitution says. Professor Adler is incorrect to assume that the Due Process Clause necessarily conflicts with Pres. Trump's suggestion, even assuming Adler is correct that this Clause applies to line-cutters but not to the people patiently waiting in line.

  • Jimmy the Dane||

    Here is an illegal's "right" to due process:

    Customs Investigator: Where is your proof you can legally enter and/or reside in the United States?

    Illegal: I don't have any but I want to apply asylum because my hell-holeistan country might (insert pity story) and because I am such a good parent I drug my kid with me to even though it violates the law

    CI: I see...what you need to do is get in line over there. They will give a sandwich with two slices of ham and a plane will be up shortly to take you back to where you belong.

    IL: But, but, what about my rights????

    CI: You just got them. Hope it was a fun ride. Next!

  • commentator||

    And that Customs Investigator's name? Albert Einstein.

  • Jimmy the Dane||

    Na will probably be a dude named Roy from Kansas.

    We forget that up until really modern times most state judges (and even some federal ones) were barely literate, wrote horrible opinions (if they wrote them at all), and would consume alcohol while presiding even over death penalty trials (can't find the cite but one state Supreme Court even upheld a death sentence even though the judge was drinking whiskey throughout the trial).

    "Due process" does not guarantee you review by a panel of professors. It just really means you are not subject to the absolute arbitrary will of one person without out least the check of another having reviewed the matter.

    There are more idiots, morons, and barely high school grads that run traffic courts, parking tribunals, and even small claims courts throughout this nation. I don't know why having some dude of average intelligence as your "trier of fact" is really that alien to most?

  • James Pollock||

    People come to the US because conditions where they were are not good. People who are happy where they are don't emigrate.

    The only way to stop them from coming is to make it so that there's no benefit of coming. Sorry, wall fans, but a wall doesn't do that.

    Here's what would:
    Change the law to require that every cash transaction of $10 or more be reported to the government. They'll need a couple of big datacenters to process all the information. But they'll be able to spot cash payments of "under-the-table", non-payroll-taxed employment. As a fun side bonus, it cuts into both illicit drug trafficking AND prostitution, and non-state-sanctioned gambling, too.

    With illegals reduced to barter-only employment, and no cash to remit back home, the impetus to send anyone to the U.S. to work gets cut almost to nil.

    THAT'S what it will take. If you look at this and say "geez, the cure is worse than the disease", that's why we haven't had a political solution to this problem, even though both parties have had control of the federal government. (If there WAS an easy solution, one of the parties would have done it when they controlled both halves of Congress and the Presidency.)

  • Jimmy the Dane||

    Or we just kick them out. Really I think we are at a case for a few months of martial law complete with "papers please" check points. (Here comes "but we aren't Nazis"). BS. The Constitution provides for martial law we just don't use it often and yeah I get that it is traditionally "un-American" to take such drastic actions. But, at this point it has got so bad that is what we need to do. Six months of policing transit points, major interstates, known enclaves of illegals, and boy I bet you the problem will disappear quickly.

    Sounds like a solution to me. Not a nice "clean" one but we tried that in 87. Didn't work. Time for plan B.

  • ||

    This only works as long as we establish that giving illegals aid or comfort will be considered an act of treason and punished accordingly. That means no providing legal services to illegals, no speaking out on their behalf, no lobbying Congress, nothing. The 1st Amendment must be suspended during times of war, and we're at war.

  • Jimmy the Dane||

    Not complicated.

    Martial law is declared. Illegals are given a 30 day period to voluntarily removed themselves. Processing points for those who volunteer are provided for the orderly exit. These won't be "gotcha centers". They will provide humanitarian assistance until orderly departure to a country of origin can be arranged which will be done on an expeditious schedule. My guess is this will get about 20-30% of illegals out within a reasonable time period in an orderly fashion.

    Then martial law is implemented for a fixed period of time. Transit points are locked down, rolling road blocks established, and community style policing of known illegal enclaves established.

    Those stopped who can not prove their citizenship or right to be in the country will be transferred to processing centers for further investigations. People who can provide a reasonable explanation/proof to a reviewer will be permitted to return home with a tracking device (seriously these things are like 10 cents each these days). Further proof will need to be provided in 14 days or person is subject to removal.

    Removal will be orderly and humane. Regular flights/ships/buses will be used. If countries refuse to accept their own citizens then it will get a little messy, but we can just put them in a "big giant work camp" until that process works out.

    After martial law ends then there is a complete immigration freeze (with very few exceptions) implemented for at least a period of 12 months.

  • James Pollock||

    Your approach has the benefit of being tried, and thus far having failed to solve the problem. Other than that, I'm sure it was fun for you fantasize about. Kinda like when I buy a PowerBall ticket, and think about all the things I could spend silly amounts of money on, and still have money left over.

  • mad_kalak||

    "Change the law to require that every cash transaction of $10 or more be reported to the government."

    You don't see any potential downsides to liberty loving American citizens with the government have such information the next time a progressive president takes office?

  • commentator||

    dat's_the_joke.jpg

  • mad_kalak||

    Whoosh, that's what I get for not reading the whole comment and stopping at the stupid part.

  • James Pollock||

    whoosh, indeed.

  • mad_kalak||

    Meh, you're still wrong in that the wall, for all of it's rhetorical stupidity would work, as would e-verify. Regardless, well played.

  • James Pollock||

    The wall doesn't do squat, except move the point of entry a bit temporarily.

    e-verify doesn't work. How do I know? Because e-verify exists, and... so do all those illegal immigrants.

  • Jmaie||

    E-verify exists but is not compulsory. Employers can check if they want, and they can hire folks regardless of the result. So not surprising it's not effective.

    Also effective, automatic denial of asylum claims if the applicant crosses the border from Mexico without having applied at a consulate. Add in denial of public assistance for non-citizens and the wall becomes unnecessary.

  • James Pollock||

    I find it amusing that you believe that employers willing to pay cash to avoid payroll tax will suddenly become law-abiding enough to run their cash-only hires through e-verify.
    That's not including the propensity for identity theft, whether by employees, employers, or enterprising third-parties.

  • Jmaie||

    I find it amusing that I you think I wrote anything even remotely suggestive of your interpretation.

    Sure, your local landscaping service probably hires a few illegals, and not much that can realistically be done about that. But it's not necessary to prevent all such employment - we only need to make a good enough dent to make folks think twice about making what is after all a fairly arduous trek.

    Lots of places hire large numbers of illegal aliens and pay them by check. Meat packing plants in the mid-west for example. Every now and then a raid occurs and deportations follow. But those are fairly rare. If we want to turn off that welcome light, the following would IMHO be a good start:

    1) make e-verify mandatory and functional
    2) audit companies submitting more than a certain number of false/duplicate SS#
    3) large enough fines to make a difference
    4) jail time for knowingly hiring illegals

    All relatively simple, especially in the age of big data. Odds of that happening are zero of course, neither party has any real interest in the project. Trump will leave office sooner or later and the issue will be flushed down the memory hole once again.

    Cheers.

  • The_Hoser||

    I keep seeing you say the wall won't work. Are you of the mind it will be built and then it will not be manned? There will be no security cameras?

  • Mark22||

    Change the law to require that every cash transaction of $10 or more be reported to the government. THAT'S what it will take.

    Nothing that draconian is needed. Merely denying all government benefits and all government services to people not legally present in the US would do the trick.

  • James Pollock||

    Since that's already the law, I guess the problem is already solved.

  • Mark22||

    That's not the law, unfortunately. For example, illegal aliens are able to bank, file tax returns, send their kids to school, buy and sell real estate, etc. All of those involve government services, and they are not denied to illegal aliens.

  • Careless||

    Well, simple enough: do like Australia and send them to someplace like Guantanamo until they're processed. They can leave any time, of course, so there's no loss of rights.

  • Mark22||

    Well, simple enough: do like Australia and send them to someplace like Guantanamo until they're processed. They can leave any time, of course, so there's no loss of rights.

    We should lease land in some Central American country for processing.

  • TWW||

    So, Adler, you support the wall, right?

  • commentator||

    Does Adler's opinion change the settled case law around due process or something?

  • TWW||

    No, the wall is a solution to his problem. No physical presence; no due process rights. Right?

  • commentator||

    This post is descriptive and lists legal facts. It does not describe a problem.

  • Onslow||

    Generally, a border fence jumper is entitled to due process, but close cases would probably turn on the facts. If Pres. Trump issued an EO to treat the situation on the southern border as an invasion (not far-fetched), and those crossing illegally as enemy combatants, then different rules govern.

    For a substantial portion of our history, most states prohibited aliens from obtaining a fee simple interest in real property. I'm not certain of when that practice ended, but I think it safe to say long after the states ratified the 5th Amendment.

  • Plow Horse||

    That's why there needs to be two fences, a mile apart with second one on Mexican soil. Anyone caught between the fences is assumed to have the intent of entering the United States illegally, and therefor can be prosecuted in any manner we see fit, included being shot on sight if necessary.

  • James Pollock||

    How does your plan account for people who want to enter the U.S. legally? Do they just apparate across? What about the Muggles?

  • Plow Horse||

    You go to the doorway in the fence.

  • James Pollock||

    without crossing through the mile in front of it? Neat trick if you can do it.

  • The_Hoser||

    Yes, because we lack the technology to have a golf cart or a bus.

  • Plow Horse||

    What due process are invading soldiers accorded, should they decide to cross the border?

  • James Pollock||

    "What due process are invading soldiers accorded, should they decide to cross the border?"

    Geneva Convention. Guess what? It includes due process.

  • Plow Horse||

    "Geneva Convention. Guess what? It includes due process."

    I believe it also includes the possibility of being shot on sight.

  • damikesc||

    Particularly if they do not wear uniforms, making them spies.

  • commentator||

    How are you going to shoot people on sight if they don't wear uniforms so you don't know they're spies from looking at them?

  • James Pollock||

    "I believe it also includes the possibility of being shot on sight."

    So does going to school in America.

  • JonBlack||

    The Geneva Convention is quite explicit that invading soldiers can not be provided with "due process" as that term is generally understood in the US. Arrests and trials for foreign soldiers- provided they are in uniform- is a big no-no.

    One of the downsides of the last faux-moral panic that corporate-lefties like you faithfully regurgitated- the Guantanamo "concern"- was to try and whittle away that prohibition. Of course, you were too stupid to know you were doing it, but that doesn't change what you were doing.

  • James Pollock||

    "The Geneva Convention is quite explicit that invading soldiers can not be provided with "due process" as that term is generally understood in the US"

    Citation?

    " Arrests and trials for foreign soldiers- provided they are in uniform- is a big no-no."

    The process that is due is not the same as the process that is due for individuals not covered by the treaty. As is true of every other treaty.

    "corporate-lefties like you"
    Is this intended to be taken seriously?

  • commentator||

    What are all those parts about "all the judicial guarantees which are recognized as indispensable by civilized peoples" and a "regular trial" supposed to mean then? Even suspected saboteurs "shall not be deprived of the rights of fair and regular trial."

  • NicholasStix||

    Guess what? You lied.

  • NicholasStix||

    That was in response to James Pollock's decree that the Geneva Conventions grant invading armies due process.

  • NicholasStix||

    Guess what? You lied.

  • James Pollock||

    Repeating yourself won't make it truer.

  • Onslow||

    There are a host of arguments for and against the kind of due process invaders would receive. None of those arguments are likely to be heard, absent an indefinite or prolonged detention.

    But Trump would need to issue some sort of order first... which is probably not politically expedient.

  • Sebastian Cremmington||

    Which is why that candidate for president in Mexico is being so reckless and irresponsible by telling foreigners to come here—one could argue that is a declaration of war.

  • James Pollock||

    "one could argue that is a declaration of war."

    One could, if one didn't mind being laughed at directly in the face.
    (Governments declare war. Not people who wish they were the government.)

  • Harry M Johnston||

    I recommend you take Trump up on his suggestion. Furthermore, the first person you should deport is Trump himself. Sure, some bleeding-heart liberals might whine that he's "entitled" to live in the US, but fortunately in the absence of due process that doesn't really matter, does it?

  • Mark22||

    I recommend you take Trump up on his suggestion. Furthermore, the first person you should deport is Trump himself.

    US citizens have a constitutionally guaranteed right to be present in the US; that's why you can't remove them.

    Non-citizens have no right under the Constitution or international law to be present in the US; that's why they can be removed, even without due process.

    Immigration is a privilege, not a right.

  • JoeB1||

    When I read the Wong Wing case linked, it seemed to actually support Trump's argument. If I read it correctly, the court held that Congress was well within it's rights to order the summary deportation of illegal immigrants, but that the attachment of prison sentences required due process be applied.

  • Sebastian Cremmington||

    We were an overtly racist country at that time so one could simply use their eyes to determine he was not a citizen.

    That is why the senator from Hawaii of Japanese descent is such a moron for saying she wasn't surprised about the detention centers because we put Japanese in internment camps. If those camps were so bad why would her family immigrate here in 1955??? Were Jews moving to Germany in 1955?? Also her family willingly moved to a country that had segregation so that means on some level they accepted racism.

  • James Pollock||

    " If those camps were so bad why would her family immigrate here in 1955?"

    Because of a couple of things that happened in 1945? 1st, the camps were shut down, and 2nd, the United States began occupying Japan. We still have American troops in Japan.

  • Sarcastr0||

    her family willingly moved to a country that had segregation so that means on some level they accepted racism.

    That's...not how acceptance works. Thinking something is better than being killed doesn't mean you can't object to it later.

  • The_Hoser||

    Who was killing the Japanese in 1955?

  • NicholasStix||

    I'm not sure what Jonathan H. Adler understands under "due process" for illegal aliens, but I suspect that it is a much more grandiose protection than that to which they are actually entitled. Expedited removal is perfectly constitutional, yet I'm pretty sure he'd come up with some sophistry to oppose it.

  • Nuwanda||

    "...yet I'm pretty sure he'd come up with some sophistry to oppose it."

    Exactly. It's part of the whole open borders conceit. Expedited processing at the border? Nope can't do that: no time to prepare a defence, no lawyer appointed, no hot food in the belly. Another tick for open borders.

    The hearing decided they had to leave? Nope: right of appeal. Rinse and repeat previous regards to lawyers, food, belly. But they won't show up for the court date. Another tick for open borders.

    When so-called libertarians employ the same bait and switch tactics the Left has been using for years, you know where the allegiances lie.

  • Sebastian Cremmington||

    Isn't this why Gitmo was necessary?

  • ReaderY||

    A quick due process lesson for Professor Adler:

    Only last week the 3rd Circuit in Osario-Martinez v. Attorney General recognized the principle that aliens seeking admission into the United States lack any constitutional rights concerning their applications for admission and have no right to any hearing of any kind regarding it, citing Landon v. Placensia, 459 U.S. 21.

    As Landon put it:

    "This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative."

    By flatly ignoring directly pertinent recent Supreme Court precedent and presenting the law as he he thinks it should be rather than as it is, in direct opposition to that precedent, Professor Adler grossly misleads,

    This post is no different in kind from a pro life professor using general due process principles and 19th century cases to argue that it's so obvious due process protects fetal right to life, it's ridiculous even to suggest that a permissive abortion law would be constitutional. It's either grossly incompetent or willfully misleading.

    You can argue why you disagree with the precedent supporting Mr. Trump's position. But you can't simply pretend it doesn't exist.

  • Eidde||

    "This post is no different in kind from a pro life professor using general due process principles and 19th century cases to argue that it's so obvious due process protects fetal right to life, it's ridiculous even to suggest that a permissive abortion law would be constitutional. It's either grossly incompetent or willfully misleading."

    Dare I ask if you've actually seen such a post from a pro-life professor?

  • ReaderY||

    I haven't. I regret if I've insulted the pro life people by attempting to make this comparison.

  • commentator||

    Osorio-Martinez is 3rd circuit, not SCOTUS precedent, so of course he didn't cite that. But also nothing in that out-of-context passage you quoted from Landon contradicts what Adler said. Landon doesn't conflict with the SCOTUS cases he cites like Plyler v. Doe, which was decided the same year as Landon v. Placensia. (And in Landon's particular case, the alien in question was in fact "entitled to due process in her exclusion hearing" anyway.)

    An alien "seeking initial admission" is either not in the United States at all yet, legally or illegally, or is just barely at the border. Adler's cases are about aliens who are already in the United States. Apples and oranges.

  • buybuydandavis||

    "are entitled to Due Process."

    They're entitled not to be *deprived* of things without Due Process.

    Since they have no right to be in the US, they are not being *deprived* of anything when deported, and the Due Process Clause does not apply.

  • James Pollock||

    How do you know they have no right to be in the U.S., if you haven't given them any process to prove that they are?

    I mean, when President Hillary declares that everyone at Fox News is an illegal immigrant, and orders them all deported, should they get any chance to claim that they're Real Americans?

  • Mark22||

    How do you know they have no right to be in the U.S., if you haven't given them any process to prove that they are?

    You ask them under penalty of perjury: "Are you a US citizen?"

    If they say "no", due process has been served; beyond that, it's a simple removal proceeding.

    If they say "yes", they are allowed "due process" for establishing their US citizenship, with dire consequences if it turns out that they lied.

    That is, "due process" only applies to the determination of US citizenship, not any other part of immigration or removal proceedings.

  • James Pollock||

    Except that there are people who are A) not citizens, and B) not here illegally. There's even a few people in categories that are not subject to removal (as an easy example, diplomats, who can be expelled but not removed.)

  • Mark22||

    There are large numbers of diplomats illegally crossing the Mexican-American border? Who knew!

  • para_dimz||

    Is there a set in stone process to make it "due"? Is there a requirement intrinsic in due process to allow an alien the full range of appellate steps? I don't think either can be constitutionally answered with a yes. When statutory law and case law cross swords with national security is the a constitutional order of priority? Does the executive have a plenary power to declare something a national security concern?

  • Jason Dawes the Elder||

    At the border, due process is whatever Congress says it is. I like Adler, but this was a materially misleading post by him.

  • James Pollock||

    Due process is in the Constitution, which gives USSC, not Congress, the final say.
    We had this argument just a little over a decade ago, when W's guys decided they didn't want to let go of the "terrorists" they'd rounded up who turned out not to be terrorists at all, and they were afraid that would make them look bad.

  • Jason Dawes the Elder||

    Let me be clearer: the SCOTUS has held that due process at the border is whatever Congress says it is.

  • Mark22||

    Is there a set in stone process to make it "due"? Is there a requirement intrinsic in due process to allow an alien the full range of appellate steps?

    The "full range of appelate steps" is none to begin with, since non-citizens have no inalienable right to be present in the US. Since there are no inalienable rights involved, there is no meaningful "due process". That is, when there are no rights to be taken away, there is no process (due or otherwise) to take them away.

  • Jason Dawes the Elder||

    You may not have heard of the INA, which has provided for expedited removal and no court review for more than 20 years.

  • LEAPGuyAZ||

    We don't need no stinkin courts.....

  • NicholasStix||

    The Volokh group may be reliable on certain branches of the law, but immigration law isn't one of them. They are open borders zealots who read their political loyalties into the law.

  • Rev. Arthur L. Kirkland||

    Maybe they are libertarian, or libertarianish, which seems to bother right-wing authoritarians?

  • Nuwanda||

    "Maybe they are libertarian, or libertarianish, which seems to bother right-wing authoritarians?"

    Maybe they are, maybe not since the arguments are the same ones raised and used by Leftists, and which often bother actual libertarians.

  • Gospace||

    If they're crossing the border at other then authorized entry points- they're invaders. They can be shot and killed while invading. That's well established international law. An executive order authorizing the unorganized militia to engage invaders to protect the border in volunteer unpaid status would likely get a lot of volunteers. I know more than a few people living near our Southern border who would volunteer.

  • Sarcastr0||

    they're invaders. They can be shot and killed while invading.

    Actually, they are not, by any definition other than right-wing circles. They are as a rule nonviolent; nor are they seeking to overthrow the current government.

    Shoot someone crossing the border and see how your legal case goes.

  • Mark22||

    Yes, everybody is entitled to "due process"; that is, the government may not deprive you of "life, liberty, or property" without due process. Arguably, it may not deprive you of other rights either. Even illegal aliens may not have their property taken away, they may not be imprisoned, and they may not be killed without due process. The children of illegal aliens may even be entitled to public school educations.

    But once it has been legally established that someone does not have US citizenship, they have no right to stay in the US to begin with; hence, removal from the US doesn't constitute an infringement of any right they have.

    Now, Congress may limit the ability of the president to remove aliens without a judicial hearing, but the US Constitution does not compel this. Furthermore, we have had "expedited removal" (removal without a hearing before an immigration judge) on the books for decades.

  • Michael Hihn||

    Rights are endowed by a creator .. not by government ... and not by citizenship in a country that never existed at the time. Remember when all conservatives would say "God-given" rights? But God-given rights is now Politically Incorrect to the tribal right.

    As Christ weeps in silent shame.
    And Jefferson vomits.

  • Mark22||

    Crossing national borders is not a "God-given right", anymore than trespassing is.

  • Frank Thorn||

    Send them to GTMO

  • Rational Hawaiian||

    Yes, but does the process that is due include judicial intervention?

  • jaastark||

    great post

  • AD-RtR/OS!||

    Really? There seems to be quite a bit of Due Process absent at the DHS "Internal Checkpoints".

  • BILKER||

    They do indeed have constitutional protection, no argument. BTW the 2nd amendment also means exactly what it says. i digress. The protection will still apply during the due process of their ILLEGALLY ENTERING the US. It does not indicate where they must be living during the process. That being the case load ALL of them on a conveyance to their home nation immediately till the proceedings convene. As with all proceedings they will be notified of the date and told they must appear. It is then they will be responsible for attending.
    BTW F*CK DENIRO, F*CK WATERS, F*CK LEE

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online