J.D. Vance’s Due Process

As our courts flounder around trying to find the degree of due process owed to illegal immigrants to America, the issue that draws our attention is whether due process is the enemy of a realistic immigration policy. On the one hand we want enough of the process due that we can ascertain the facts. On the other hand we don’t want so much process that the president can’t faithfully execute the laws. That balance is ripe for clarification. Start with the fact that there are some 12 million illegal immigrants in America. President Trump ran for office and won the White House on a platform that prioritized their removal. Now, though, that effort has become snarled in the courts, largely over the issue of due process. The Supreme Court has already held that those deported under the Alien Enemies Act are due some kind of process, despite the vast powers of that statute. Yet Vice President Vance took to X to make a trenchant point: “To say the administration must observe ‘due process’ is to beg the question: what process is due is a function of our resources, the public interest, the status of the accused, the proposed punishment, and so many other factors.” He adds “Here’s a useful test: ask the people weeping over the lack of due process what precisely they propose for dealing with Biden’s millions and millions of illegals.”Mr. Vance sees a danger that due process could emerge as a Trojan Horse where Mr. Trump’s foes work “to accomplish through fake legal process what they failed to accomplish politically.” He alludes to the case of the alleged MS-13 member Kilmar Abrego Garcia, who was deported to El Salvador despite a judicial order from 2019 barring him from being shipped to the Central American nation. A judge has ordered the Trump administration to “facilitate” his return. The administration insists that deporting illegal aliens is firmly within the Executive’s power. As our A.R. Hoffman reports, though, federal judges appear to be contemplating contempt charges over the denial of due process. Even if some process is due, though, that does not mean that the burden is shared equally. In criminal cases, due process means that the burden of proof rests entirely on the government. The accused is presumed innocent. A different standard obtains with respect to deportations of illegal aliens, though due process still applies. Immigration law mandates that “Once alienage has been established” — that requires the government to prove its case — “unless the respondent demonstrates by clear and convincing evidence that he or she is lawfully in the United States pursuant to a prior admission, the respondent must prove that he or she is clearly and beyond a doubt entitled to be admitted.” Tension between the Executive and Judicial branches is a feature rather than a bug of our constitutional system. Sage advice, though, comes from a circuit rider of the Fourth United States Appeals Circuit, Harvie Wilkinson. In an opinion denying the government’s effort to stop the retrieval of Mr. Abrego Garcia, he writes “Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both.” The administration could yet find that the better part of valor is to avoid running roughshod over due process. It could be, in respect of immigration, that its policies are not only politically potent but also on firmer legal footing than these early results in court suggest. Presidents Obama and Clinton managed to deport millions. We’d like to think that the 14th Amendment leaves room for the fulfillment of the agenda on which Mr. Trump got elected._______________Correction: El Salvador is a Central American nation. An earlier version misstated its geographical situation

J.D. Vance’s Due Process

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