Without Due Process, None of Us Are Safe, Nor Is Our Democracy Still in Effect
The following was written by Erwin Chemerinsky, dean and professor of law at the UC Berkeley School of Law.
The Trump administration wants to obliterate one of the most basic constitutional guarantees: due process of law. The Constitution requires that “no person” be deprived of life, liberty or property without “due process of law.” Yet, in its words and its actions, the Trump administration has expressed contempt and defiance for this vital constitutional necessity.
The requirement that the government must provide fair procedures before taking away life, liberty or property is not new. The Magna Carta, issued in England in 1215, expresses the importance of due process of law. It provides that no person may be seized, imprisoned or deprived of their possessions, liberties or rights, except by the lawful judgment of their peers or by the “law of the land.”
Two constitutional provisions mandate that the government must provide due process: The Fifth Amendment requires this of the federal government, and the Fourteenth Amendment imposes this on state and local governments.
President Donald Trump, however, has railed against providing due process.,
“I’m doing what I was elected to do, remove criminals from our Country, but the Courts don’t seem to want me to do that,” Trump posted on Truth Social. Deputy Chief of Staff Stephen Miller stated, “The judicial process is for Americans. Immediate deportation is for illegal aliens.” In fact, on Friday, May 9, Miller said that the Trump administration is “actively looking” at the possibility of suspending the writ of habeas corpus to allow deportations without judicial review or due process. (Habeas corpus is the right against unlawful imprisonment. It forces authorities to justify the confinement of a prisoner in a court of law.)
All of this is just wrong as a matter of law. The due process clause is explicit: it protects all “persons.” As the Supreme Court has held, it is not limited to citizens or even those lawfully in the United States. The law is also clear that deporting a person is a deprivation of liberty, and due process is required. Habeas corpus can be suspended only by Congress if there is a “rebellion or invasion.”
The Trump administration is ignoring why due process is vitally important: governments make mistakes. The Trump administration has said that it deported members of Venezuelan gangs to a maximum-security prison in El Salvador. But it cannot be known whether someone really is a gang member or whether they are being wrongly accused without due process of law. The Trump administration identifies people as dangerous, but the point of due process is to make sure that is so before someone is deported or imprisoned.
That is why the core of due process is that a person must be given notice and an opportunity to be heard with a neutral decision-maker before life, liberty or property can be taken away. Due process is about making sure that the government, with its enormous power, treats people fairly.
A person who claims to be held in custody in violation of the Constitution can file a writ of habeas corpus in federal court. If habeas corpus is suspended, as Miller threatened, then those being detained and deported will lack the ability to go to court to object to losing their liberty without due process of law.
It is striking that, in so many of its actions, the Trump administration has completely ignored the requirements of due process of law. It has cut off funds to universities without notice or a hearing, which is required by the Constitution and also by federal statutes. Federal law is clear that before there can be a cutoff of funds, there must be “an express finding on the record, after opportunity for hearing” of any failure to comply with the statute, as well as “a full written report” submitted to House and Senate committees at least 30 days before the cutoff takes effect. This obviously has not been done for any of the universities.
The Trump administration has imposed draconian sanctions on law firms that, if upheld, would put them out of existence. Trump has been explicit in saying that these executive orders are entirely for retribution for having employed lawyers who investigated or prosecuted or opposed him. The punishments were imposed without any due process.
Perhaps most troubling is that the Trump administration has moved people to a maximum-security prison in El Salvador without any legal authority to do so. As federal Court of Appeals Judge Patricia Millett said, they have done so without a semblance of due process.
Admittedly, providing due process makes it more difficult for the government to do what it wants. And that is precisely its point: It is the crucial protection that all of us have against arbitrary government actions.
None of this is new. The importance of due process of law has been recognized for centuries. What is different now is an administration that wants to do what it chooses without meeting the requirements for due process and without any checks upon its powers. That is a dictatorship, not a constitutional democracy.