Due process, democracy, and a doozy of a case
Part 1: Due process and democracy
The right to due process singularly demarcates democracy from autocracy or dictatorship. It is a right that had has taken centuries take its current form It emerged first in twelfth century England and developed as it spread throughout the United Kingdom; to the American colonies and states; and finally to the United States, where it is enshrined in the U.S. Constitution, first in the Fifth Amendment and eventually also the Fourteenth. It has been a hard won protection against the raw power of governments. Donald Trump and his followers want to destroy it in the United States. We must not allow this.
Regardless of variation in factual circumstance, many of the lawsuits currently pending against the Trump executive branch claim it has acted without according the due process required by the Fifth Amendment to the U.S. Constitution.
Toggle for a non-exhaustive list of factual situations giving rise to Due Process claims against the Trump regime
Removal of immigrants from the United States; termination of foreign students' visas; withholding of funds from sanctuary cities; elimination of job protections for federal civil servants; the termination of USAID grants to partner organizations and the firing of USAID staff; layoffs and the elimination of certain departments at the Department of Education; revocation of collective bargaining at multiple federal agencies; the elimination of certain departments within the Social Security Administration; termination of grants to scientists from the National Institutes of Health; termination of federal funding to universities and colleges; a ban on transgendered persons serving in the military; the halt to refugee resettlement; the dismantling of the Institute of Museum and Library Services; suspension of Small Business Administration loans; freezes on distribution of federal funds to the states; access to White House press briefings for the Associated Press; and refusing certain law firms access to federal buildings, denying the firms' attorneys and staff security clearances, and requiring government contractors to report to the government whether they are clients of these firms.
Even if you think you know the Fifth Amendment well, it is worth taking the time to reread the text with care.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In lawsuit after lawsuit, plaintiffs are alleging that Trump and executive branch officials he has appointed or instructed have deprived them of their physical safety, their freedom or their resources, or some combination of these without following any, or any meaningful, legal procedure. "Due" procedure requires that the government set out grounds for the deprivation it seeks to impose; that the person who would suffer the deprivation has a meaningful opportunity to rebut those grounds; and that a fair decision-maker determine the dispute. This protects each person – each person who, when combined with others, constitutes "We the People," the sovereign of the United States – from being killed, imprisoned, or impoverished by the government unless the government follows an acceptable legal procedure.
Part 2: A doozy of a case: D.V.D v. U.S. Department of Homeland Security
The cases involving immigrants to the U.S. have raised particularly egregious violations of due process because the Trump executive's conduct threatens the very lives and the most basic liberty of the people the Trump-Noem DHS has been sending out of the country or trying to. Moreover, because some immigrants have criminal records — some including violent, extreme crimes — they can be extremely unsympathetic claimants. Of course, the point of any constitutional or statutory right is that belongs to even the most unsympathetic characters who possess it.
In the past week or so there has been a lot of activity related to one of these cases, D.V.D. v. U.S. Department of Homeland Security (D.V.D v. DHS). The case has gotten exceptionally wild, even by Trump regime standards, in the past twenty-four hours.
It concerns immigrants who have been found to be deportable under the Immigration and Nationality Act (INA) but who were granted, by immigration courts, "withholding of removal" orders. These forbid deportation of an immigrant to a specific country, named in the order, usually the immigrant's native country and usually because the immigrant has demonstrated a credible fear for his/her/their life or freedom if sent there. The INA permits the executive branch to deport such immigrants to other countries, referred to as "third party" countries. But the statute also imposes constraints, intricate but distillable to this point: the government may not send immigrants to countries where they will likely face torture or persecution. What constitutes torture or persecution is a contested question, which has been much litigated. However torture and persecution are defined though, a non-citizen's right not be sent to a third-party country where he/she/they can show it is more likely than not he/she/they will face torture is a right enshrined in the INA itself. Even immigrants found to have been removable from the country retain this right. Therefore, the government may not send immigrants to third countries without following some sort of legal procedure that allows them to assert that the destination-country is a place where they are more probably than not going to be tortured. What is unsettled are the specifics of a legal procedure that would satisfy the requirements of due process. It is clear that due process demands some level of procedural protection. What would constitute constitutionally satisfactory procedure is the major substantive raised by D.V.D. v. DHS.
D.V.D. v. DHS was initially brought because the Trump regime apparently began efforts to send detained, deportable immigrants to third-party countries without giving them any opportunity to assert their rights not to be sent to them due to a fear for their life or freedom. The case is before Judge Murphy in the District Court of Massachusetts. He granted the plaintiffs a temporary injunction prohibiting the government from removing any of them to a third-party country while the litigation is ongoing unless the government gave them a "meaningful opportunity " to raise fear-based concerns about being sent to any given specific third-party country. Note, this injunction was not addressed to what would ultimately have to be resolved at and even after trial: what level and kind of procedures would satisfy the right to due process before removal to a third-party country for people like the plaintiffs. Judge Murphy was only trying to ensure that the plaintiffs were not wrongly deprived of the most basic due process while the trial and subsequent legal proceeding occur.
Despite the preliminary injunction, the Trump-Noem DHS flew some plaintiff-immigrants out of the U.S., planning to relocate them to South Sudan, though there was a stop en route in Djibouti, where the U.S. has a naval base. DHS gave these immigrants less than 24 hours notice that they were being shipped to South Sudan. Judge Murphy ruled that this conduct violated the temporary injunction. To figure out an appropriate remedy, Murphy held a hearing with counsel for the plaintiffs and the Department of Justice (DoJ) lawyers representing the Trump executive branch defendants. The plaintiffs took the position that the only remedy was to fly the immigrants back to the U.S. for the required hearings on fear of torture. The defendants, while not conceding they had violated the temporary injunction, asserted that the judge had to fashion the narrowest possible equitable remedy for the violation he found. The judge agreed precedent requires this. During the hearing he raised the questions of whether the hearings could be conducted in the country where the immigrants were now located and whether the government could provide the immigrants with conditions for these hearing that would be commensurate with those available in the U.S. After hours of checking, the DoJ lawyers confirmed that this was doable. Eventually, Murphy decided to permit, but certainly not to require, hearings to be held abroad; he explicitly left it to the Trump executive branch to elect to return the immigrants to the U.S. for proper hearings.
Judge Murphy asked the DoJ lawyers for input on what specific procedures would minimally protect the plaintiffs' due process rights, a question he had asked at other junctures in the litigation. The DoJ has never supplied any input, standing on the ground that either no procedural protections are required for the immigrants in question or that the less-than-24 hours notice that Murphy has ruled insufficient in fact is satisfactory. Instead, DoJ at one point in the litigation asked Murphy to "clarify" what counts as a "meaningful opportunity" to assert fear of torture in any given newly named country. In response, Murphy laid out minimal requirements for amount of time for notice, availability of translators, access to counsel etc. He has explained repeatedly that this is not his preference, that he would have preferred what ordinarily happens in situations like these: the relevant government agency fashions a procedure it believes complies with due process. Then, if the plaintiffs object the matter is resolved by briefing and argument to the court. Nevertheless, because the DoJ lawyers requested guidance, Murphy supplied it.
No sooner than Murphy issued his written order specifying the remedy for the Trump executive branch's violation of the temporary injunction, did the Trump executive defendants file a motion for him to stay this order while they appeal it. With breathtaking chutzpah, their brief argued that the remedy required them to hold hearings abroad and that the clarified temporary injunction imposed impossibly burdensome procedures. Last night Murphy denied the stay, in a masterful memorandum and order.
Toggle for highlights from Judge Murphy's memorandum and order
Murphy begins, "Defendants have mischaracterized this Court’s order, while at the same time manufacturing the very chaos they decry. By racing to get six class members onto a plane to unstable South Sudan, clearly in breach of the law and this Court’s order, Defendants gave this Court no choice but to find that they were in violation of the Preliminary Injunction." He continues, "Even after finding that violation, however, the Court stayed its hand and did not require Defendants to bring the individuals back to the United States, as requested by Plaintiffs. Instead, the Court accepted Defendants’ own suggestion that they be allowed to keep the individuals out of the country and finish their process abroad." Murphy quotes extensively from the transcript of the hearing where DHS asked for the very remedy they now say it is impossible for them to comply with. After that, Murphy simply reiterates the basic point: it doesn't matter whether the people the government sent to South Sudan have criminal histories; they are still entitled to due process before the government ships them off to third countries. He quotes two precedents that make the point that proper legal procedure is the major safeguard of "American freedom." In a barely-veiled comment on the Trump regime, Murphy writes, "The Court treats its obligation to these principles with the seriousness that anyone committed to the rule of law should understand." Later, he reminds his audience, "Defendants describe the hardship of having to carry out impromptu immigration proceedings on foreign soil. Dkt. 130 at 7–9. But that was—and continues to be—Defendants’ daily choice. 'To say more would be to paint the lily.' (citations omitted)."
Unsurprisingly, today the Trump executive branch filed with the Supreme Court a request for an administrative stay of all of Murphy's orders, that is, asking the Roberts Court to prevent the remedy of their violation of the preliminary injunction from taking effect. In the interests of (some) brevity, I will simply make some quick points:
- The filing is part of a pattern of the Trump regime running to request emergency relief from the Supreme Court rather than pursue the normal appeals process.
- This particular filing repeatedly lies about the content of Judge Murphy's orders.
- The filing is filled with arguments that go to the merits of the case, which are not in play at this time. But the Trump executive is attempting a maneuver it has succeeded with before: get the Roberts Court to rule prematurely on underlying substantive issues to signal to district courts how the Supreme Court expects the trial court judge to rule on issues of law.
When Donald Trump and his regime's officials abruptly ship immigrants to dangerous third-party countries where they are at risk for torture, they show their total disregard for due process of law. Trump wants unfettered power to treat people in the United States however he chooses. The Fifth Amendment's guarantee of due process prior to any deprivation of life, liberty, and property is supposed to be a foundational block against this. Like all the other due process cases making their way toward them, D.V.D. v. Trump gives the Supreme Court Justices a choice: protect democracy or capitulate to encroaching dictatorship.