As the political controversy escalates surrounding the detention of migrants and asylum seekers along the US-Mexico border, President Donald Trump is calling for the due process rights of undocumented people to be suspended.
“We cannot allow all of these people to invade our Country,” he tweeted on Sunday. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”
The president then doubled down on these comments early Monday.
“Hiring many thousands of judges, and going through a long and complicated legal process, is not the way to go - will always be disfunctional [sic],” Trump tweeted. “People must simply be stopped at the Border and told they cannot come into the U.S. illegally. Children brought back to their country.”
The right to due process means that a person has the right to go before a judge who consults law to determine the outcome of their legal case. Suspending that right removes the judge — and oversight — from the process.
Trump’s proposal comes after the scaling back of a “zero tolerance” policy that separated more than 2,300 undocumented children from their parents. It maintains his administration’s harsh approach to immigration, and attempts to expand the scope of who is eligible for fast-track deportation.
It also comes as undocumented immigration remains at an historic low in the country, despite the president’s claims of the US being “invade[d]” by migrants and asylum seekers.
If adopted, the policy of suspending due process for undocumented immigrants could violate constitutional rights and court precedents, and may lead to the unwitting deportation of US citizens, according to civil rights groups and legal scholars.
It would also undermine the proper functioning of the country’s judicial system, which is a hallmark of a healthy democracy, according to the United Nations. Goal 16 of the UN’s Global Goals for Sustainable Development — peace, justice, and strong institutions — calls for all countries to have unobstructed law enforcement, a cause that Global Citizen campaigns on.
📣 What President Trump suggested here is both illegal and unconstitutional.— ACLU (@ACLU) June 24, 2018
Any official who has sworn an oath to uphold the Constitution and laws should disavow it unequivocally. https://t.co/qsy58VACSB
“Trump is making the tyrannical claim that he has the right to serve as prosecutor, judge and jury with respect to all those who enter our country,” Laurence Tribe, a Harvard constitutional scholar, told The New York Times. “That is a breathtaking assertion of unbounded power — power without any plausible limit.”
Trump’s call for unsupervised deportation is partly in response to the tremendous backlog facing federal immigration courts. There are currently more than 700,000 cases waiting to be heard, with more pending trials being added every day.
Democrats and Republicans have both argued that adding more judges to the system would help to ease this burden, and would also respect the rights of asylum seekers and migrants, according to the Times.
The federal immigration system currently has less than 400 judges, and 74 serve along the border.
Removing judges from the process of deportation may violate the Constitution’s Fifth Amendment, which mandates due process, and the 14th Amendment, which expanded these rights for immigrants, according to Tribe’s interview with the Times.
It also violates US and international laws that protect the right of asylum seekers to ask for protection before a judge, according to Vox.
The question of due process for undocumented immigrants has long been contested by both Democrats and Republicans that have championed hardline approaches to immigration, according to the Times.
But the call to completely dispose of due process for those who cross the border is largely unprecedented.
It also has far-reaching implications for all US citizens, according to scholars. Since 2012, nearly 2,000 US citizens have been detained by ICE for months and years and some have even been deported, according to an analysis by the Los Angeles Times. Davino Watson, a US citizen, spent more than three-and-a-half-years in an immigrant detention center after being accused of living in the country illegally.
Some legal experts fear that suspending due process for one group of people could quickly affect all groups of people.
If Trump can deny due process to those allegedly here unlawfully, ICE can grab YOU, allege you aren’t a citizen & deport you w/out a hearing— Ronald Klain (@RonaldKlain) June 24, 2018
"This clear call for an end to the constitutionally guaranteed right to due process is symptomatic of an administration that disdains both the Constitution and our judicial system, and would subject those who cross our borders to the whims of unaccountable officials acting on the twisted logic of white supremacy and racism," Nihad Awad, national executive director of the Council on American-Islamic Relations, said in a statement.
"All Americans should be outraged by this affront to our values and democracy."
Global Citizen is campaigning to get Congress to reunite children who have been separated at the US border with their parents. You can take action on this issue here.