President Trump came under fire Monday for his weekend tweets suggesting that unlawful entrants be “immediately, with no Judges or Court Cases,” be expelled from the country. “A long and complicated legal process, is not the way to go – will always be disfunctional,” the president asserted. Commentators quickly pounced, enjoying the opportunity to tut-tut that even unlawful entrants were entitled to due process under the Constitution.
These commentators are partially correct, but their strident “actually, Mr. President” tweets and columns betrayed their own ignorance more than the president’s. The Supreme Court has long held that aliens within the United States are entitled to due process, “whether their presence is lawful, unlawful, temporary, or permanent.” But that is only the beginning of the question of what process a particular class of alien is entitled to.
The Supreme Court has also explained that aliens enjoy constitutional protections only when they have “developed substantial connections with this country.” A lawfully admitted alien thus has an entitlement to more thorough due process than a long-term unlawfully present alien, who in turn has an entitlement to greater due process than an alien recently arrived and paroled into the United States. And an alien seeking admission to the United States for the first time, having the least “connection with this country,” has the most limited due process of all: “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”
This sliding scale of due process for aliens is not a recent aberration in Fifth Amendment jurisprudence. But the squalling of commentators largely failed to mention, much less analyze, the process actually due to entrants intercepted near the border and shortly after their unlawful entry to the United States. In fact, such aliens are subject to expedited removal — without even the guarantee that they must come before an immigration judge.
In such cases, an officer of the Department of Homeland Security is authorized by Congress to order removal “without further hearing or review.” So Trump’s “immediately, with no Judges or Court Cases” tweet was not so far afield as his antagonists claimed, but a reflection of the everyday realities of immigration enforcement.
Furthermore, Congress has provided that only an unlawful entrant who also claims either an intent to apply for asylum or a fear of persecution is entitled to an additional DHS interview and, with restrictions on timing and further appeal, review by an immigration judge. Such additional process, in the context of an asylum application, is thus contingent; it is not constitutionally required, but a feature of the generosity of Congress.
Several bills being considered presently by Congress would further restrict this asylum process in light of the child migrant and family separation crisis currently roiling the southern border, and they could do so without violating due process. Trump’s call to avoid a “long and complicated legal process” thus fits well within the mainstream of proposals for reform, particularly as applied to aliens who recently entered unlawfully and who have not developed substantial connections to the United States.
The president’s critics either were unaware of the state of the law or simply couldn’t pass up the opportunity to dog the president on this.
Gabriel Malor (@GabrielMalor) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an attorney and writer in Washington, D.C.
