You’ve heard the discussion. It’s taking place everywhere, from barber shops to bars to family dinner tables to Sunday school classrooms:
What are we going to do about illegal aliens? They’re not illegal; they’re merely undocumented.
Well, if the law says they have to be documented, and they’re undocumented, they’re illegal. But we still must give them fair trials. The Constitution says so.
Maybe you didn’t hear me; I said illegal aliens. The Constitution applies only to citizens. That’s where you’re wrong; the Constitution applies to everyone. Equal protection for all!
Trials for millions of illegal aliens? That’ll take years and billions of dollars. Meanwhile, they’re robbing, raping and murdering honest citizens. We don’t have to tolerate that!
Much of this discussion relates to a clause of the Fifth Amendment: “No person shall … be deprived of life, liberty, or property, without due process of law.” A similar clause in the 14th Amendment applies the due process requirement to the states, but immigration and deportation are primarily federal issues.
To achieve clarity among the clouds of confusion, we must focus on the following three questions:
1. To whom does the due process clause apply?
It is tempting to say that the due process clause, and in a larger sense the Constitution as a whole, applies only to U.S. citizens. But that’s not what it says. It doesn’t say, “No citizen … shall be deprived,” it says, “No person … shall be deprived.” The Supreme Court has repeatedly held that “the Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent,” Zadvydas v. Davis (2001). Just as I have often argued that the term “persons” includes preborn children, I also have to say it includes illegal aliens.
This does not mean non-citizens have all of the same rights afforded to citizens. The 15th, 19th, and 26th Amendments extend the right to vote only to citizens (although states may extend the right to others), and Articles I and II expressly require that one must be a citizen to be elected to federal office. But the basic rights guaranteed by the Bill of Rights apply to all persons.
2. What right is being taken away by deportation?
It would be hard to argue that deporting an illegal alien deprives him of the right to life, even if his life might be in danger in his own country. But living in the United States is certainly a precious liberty, and possibly it is a property right as well, especially if he is forced to leave certain property behind when he is deported.
One might argue that the illegal alien has no right to be here, so deporting him does not deprive him of any right to which he is lawfully entitled. But first, we must determine that he is, in fact, an illegal alien and that he has no right to be here. Suppose someone, either out of spite or mistaken identity, reported you as an illegal alien, and federal officials arrested and deported you without so much as a hearing at which you could demonstrate that this was all a mistake? Surely you would consider that a constitutional violation!
And that’s where “due process of law” comes in. So now we come to our third question:
3. What is due process of law?
The concept of due process of law goes back beyond the Magna Carta to biblical law which protected the individual against arbitrary action by requiring that in the mouth of two or three witness everything should be established (Deuteronomy 17:6; 19:15; Numbers 35:30). It also prohibited judges from taking bribes (Exodus 23:1-8) and imposed strict penalties for perjury (Deuteronomy 19:16-21). Due process has been described as a system of justice that hears before it condemns, that gives the affected person advance notice of what the government intends to do and a hearing at which the person can present his side of the story.
The picture of a full trial with a judge, jury, lawyers for both sides, the presumption of innocence, and the right to appeal comes to mind. But this isn’t always what due process means. As the Supreme Court said in Betts v. Brady (1942), due process is “a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights.” The elements of due process may vary depending upon what is at stake for the parties, the likelihood of error in the process, the likelihood that expanding due process would correct or reduce the likelihood of error, the cost of expanding due process, and the degree to which this kind of process shocks the conscience or violates fundamental notions of fairness.
For example, a person charged with capital murder is entitled to a jury trial, the presumption of innocence, the right to counsel, the opportunity to confront and cross-examine witnesses, the right to testify or remain silent, the right to present mitigating circumstances before sentencing, and the right to appeal. The courts have held that the right to trial by jury does not apply to those charged with petty misdemeanors, because less is at stake for the defendant.
And what about a child who is being suspended from school for alleged misconduct? He and his parents are being denied a liberty or property interest, the right to attend school (whether he wants to or not). But he is not entitled to a full trial before suspension or expulsion. The right to go before the principal, hear what he is accused of having done, and tell his side of the story is probably sufficient to satisfy due process requirements in such cases.
Likewise, a person whose welfare benefits or Social Security disability payments are being cut or reduced is allegedly being deprived of a property interest. But rather than a full trial, due process may be satisfied by an informal administrative hearing, or possibly by allowing him to submit written documentation of his claims.
The point is, the Fifth Amendment Due Process Clause does not have a fixed meaning. It requires fundamental fairness, which at the very least includes advance notice and the right to be heard. But how detailed and formal these requirements must be may vary on a case-by-case basis.
So what about due process for illegal aliens? Clearly, they are entitled to due process, but what does due process require? That’s what the courts are wrestling with in the myriad cases before them.
The requirements may be different for those whose illegal status has already been determined, and for those who have been legally convicted of crimes. To some extent, they have already had due process, although some issues, such as their identity and classification, may still need to be determined. This probably doesn’t require full trials and may not even require individualized hearings; possibly, these cases could be heard in groups.
President Trump is fighting valiantly to correct a terrible situation; official estimates point to 11.7 million illegal aliens in the United States, and the number could actually be much higher. Many of Trump’s predecessors allowed this problem to fester, and some may have encouraged illegal immigration to alter American demographics. Drastic action is required. But as we act, someone must guard the Constitution. The greatest threat to constitutional liberties comes not from those who would openly set them aside for personal aggrandizement, but from those who would bend them just a little – and then a little more – for a good cause.
You may ask, “So where should we stand on illegal immigration? Eidsmoe, you’re leaving us hanging!”
You’re right. I haven’t answered the question, and for the present, I’m going to leave it hanging. But I have delineated the legal and constitutional issues the courts are wrestling with. And as we watch the actions of the president and Congress, and as the decisions of the courts unfold, I hope we can analyze these issues with greater clarity.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church of Notasulga, AL (woodlandpca.org). He may be contacted for speaking engagements at [email protected].
