How much "Due Process" is Actually Due

Everyone is talking "Due Process" with these removals--but how much is actually "Due"?

A series of legal challenges are mounting against the Trump administration’s aggressive efforts to remove noncitizens, many of which allege violations of constitutional due process protections. Attorneys for the noncitizens in these cases argue that removals have been carried out without “due process.”

But what exactly is “due process” in this context? Everyone seems to be certain that everyone is entitled to it. Everyone seems pretty certain that it’s being denied. But does everyone clamoring for it actually know what “due process” would look like?

It turns out, not much.

For example, it seems really unfair that these detainees are removed from the country so quickly. But the time the government is giving them to file “habeas” petitions might be constitutionally adequate (a habeas petition is a legal means for these noncitizens to challenge their detention). Courts have upheld even shorter windows to file legal challenges under immigration statutes without finding a due process violation. For example, 8 U.S.C. § 1225 outlines the procedures for the inspection of aliens and includes provisions for the expedited removal of inadmissible aliens. Specifically, 8 U.S.C. § 1225(b)(1)(A)(i) permits certain noncitizens to be removed in as little as 24 hours after arrival. Under this law, immigration officers may summarily remove individuals who are inadmissible due to fraud or lack of valid documents, unless, of course, they seek asylum or express a fear of persecution. But the point is: § 1225 removals can occur with minimal process and within a single day, and the courts have upheld this timeline as constitutionally adequate. The government argues that if removal within 24 hours under § 1225 passes due process tests, then removal without a hearing under the AEA must pass the same tests too.

If people expect that folks like Kilmar Abrego Garcia, if returned to the U.S., will be entitled to a televised jury trial and a court-appointed defense team, then they will be similarly disappointed. There is no express statutory right to counsel under the AEA. There is no statutory right to a hearing under the AEA.

The government argues that the Alien Enemies Act explicitly authorizes the removal of enemy aliens without individualized hearings or procedures, especially during wartime or national security contexts.

According to the government, the Supreme Court in Ludecke v. Watkins, 335 U.S. 160 (1948), upheld this framework, finding that enemy aliens may be removed solely on the basis of executive determination under the AEA.

I’ve heard the argument that the few times in history the AEA was used was during an actual declared war. That’s a very good point. But is it a good enough point for the courts to intrude upon the executive branch’s determination that someone is an (1) Alien (2) Enemy? Maybe. Probably. We’ll know when that issue is resolved—probably at the Supreme Court.

Meanwhile, arguing that the AEA is old, or rarely used, is not a strong argument. The constitution is old. The 14th amendment is old. There’s nothing wrong with “old” legislation. Nor is the fact that the AEA is rarely used a strong argument. Seditious Conspiracy (18 U.S.C. § 2384) is a very rarely-charged crime, and yet, that statute was used in the prosecutions of members of the Oath Keepers and Proud Boys for their roles in the January 6 Capitol attack. Statutes cannot be suspect just because they are old, or rarely used.

The AEA is not an immigration statute. According to the government, the constitutional protections for noncitizens in immigration proceedings (like due process hearings) do not apply under the AEA. Therefore, if no individual assessment or hearing is required before removal under the AEA, the government argues that there is no due process violation in not providing one.

Criminal defense attorneys will tell you that habeas petitions are rarely granted; they are often denied without a hearing. According to statistics, federal habeas petitions have about a 1-2% success rate. If due process required a hearing in every habeas petition, the federal courts would probably come to a grinding halt; one thing prisoners do is file a lot of (pro se) habeas petitions. The point is this: the promise of habeas relief isn’t much of a relief, at least not to criminal defense attorneys and their clients.

It seems that the only thing that a person removed under the AEA can challenge is his determination as an (1) Alien (2) Enemy. That’s not nothing. But it’s probably not much.