The Volokh Conspiracy
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How Trump's Alien Enemies Act Deportations Violate the Due Process Clause of the Fifth Amendment
The people deported are incarcerated in Salvadoran prisons without any due process whatsoever.
Most public debate over the Trump Administration's efforts to use the Alien Enemies Act as a tool for deportation have focused on whether the invocation of the AEA is legal, and the administration's apparent defiance of a court order blocking the deportation of some 137 Venezuelans under the Act. These are important issues. But not enough attention has focused on what is being done to the Venezuelans after their deportation: they are to be incarcerated for one year or more in El Salvador's awful prison system.
This is much worse than "normal" deportation of undocumented immigrants, which is bad enough. With conventional deportation, the government removes the migrants from the US, but then sets them free in their country of origin (or at least as free as they can be under the oppressive regimes that govern places like Venezuela). In this case, by contrast, the deportees are sent to prison in terrible conditions. And that's without ever being charged or convicted of any crime related to the ostensible reason for the deportation (supposed membership in the Tren de Aragua drug gang). The migrants in question did not get any opportunity at all to contest claims that they are members of TdA. All we have is the administration's unsupported word. The government actually admits that "many" of the deportees do not have any criminal convictions of any kind. Moreover, publicly evidence suggests many of them are probably not actually gang members, and some even entered the US legally.
This policy is obviously unjust. Imprisoning people without any due process whatsoever is a cruel and evil practice usually used only by authoritarian states. And if the Trump administration gets away with it here, there is an obvious danger it will expand the practice. While the current AEA proclamation is limited to Venezuelan members of Tren de Aragua, if courts uphold it, it could potentially be expanded to other Venezuelans and migrants from other countries. And, of course, as already noted, the administration isn't giving any due process rights to those targeted for AEA deportation, which enables it to deport people simply by claiming they are gang members, even if they really aren't.
Legally, imprisonment without due process violates the Due Process Clause of the Fifth Amendment, which states that people may not be deprived of "life, liberty, or property, without due process of law." Imprisonment is an obvious deprivation of liberty, and here we have a complete absence of due process of any kind.
Like most other constitutional rights, the Due Process Clause protects all persons, not just citizens. If the US government arbitrarily imprisoned non-citizens within its territory, there is no doubt that would be unconstitutional. Some argue it does not apply to non-citizens outside the US. But legal scholar Nathan Chapman showed, in an important 2017 article, that in the Founding Era, the Due Process Clause was understood to apply even to foreign-citizen pirates captured in international waters. If so, it also obviously applies to deported immigrants.
Another possible rationale for not applying the Due Process Clause in this situation is that the imprisonment is being done by the Salvadoran government, rather than the US. But the Salvadorans are obviously doing it at the behest of the Trump Administration, which is paying them a $6 million fee for this "service." It would be perverse to allow the federal government to circumvent the Due Process Clause by paying a foreign state to do its dirty work. Licensing such subterfuge would create dangerous perverse incentives: the feds could potentially detain anyone they want without due process, simply by outsourcing the "job" to a foreign government willing to do it for the money, or to curry favor with the US administration.
It is true that current legal precedent and practice (wrongly) allows weaker due process protections for immigration detention than for most other deprivations of severe liberty. But here, the Administration is going beyond merely detaining illegal migrants until they can be deported. It is facilitating their imprisonment even after deportation - and without any due process whatsoever. Moreover, in ordinary deportation proceedings, the migrant in question generally is at least entitled to a hearing. Trump's AEA deportees didn't even get that.
There may be various procedural and practical obstacles to courts ordering the administration and El Salvador to release the imprisoned Venezuelans and allow them to return to the US. I won't try to go over them here. But these technical legal issues don't change the reality that this imprisonment without due process is both unjust and unconstitutional.
