First, Kill all the Lawyers

These days, I’m seeing a tsunani of social media posts about how the Trump administration is deporting illegals without due process. No it’s not! Yes it is! Stop it! You started it! No you did!

STOP!

Look, I don’t have a dog in this race. On the one hand, I have absolutely nothing against immigrants. I’m in a cheap, well-build house and enjoy cheap, healthy food largely thanks to illegal immigrants, and I admire the moxy of those who come here illegally to strive for a better life. I also know the main reason they do is that businesses are eager to hire them for their cheap labor, and that it’s more than a little disingenuous to come down like a load of bricks on immigrants while letting their employers off scott free.

I also know that illegal immigrants, contrary to Trump conservative rhetoric, pay into our public coffers vastly more than they take, and are about 5 times less likely to commit crimes than citizens. But I also know that immigration law is messed up, and has been for a long time, and is currently imposing a real and undue burden on certain communities. Fair enough.

Beyond that, I have my own life to worry about and my own concerns, like that the same administration is using a similar level of tact and intelligence (which would be none at all) to redress the admittedly disastrous consequences of post Reagan trade agreements, and if he manages to topple the world into World War III or the next Great Depression, we are all going down together. And even if he doesn’t, the economic inequality in this country has expanded to the point that the well off can think the economy is doing well while the other half the country is desperate enough to elect a carney huckster president.

So yeah…I rather doubt this administration is playing fair, nice, or by anybodies idea of rules. But lets at least take a look at what those rules are.

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.

If you don’t recognize those words, shame on you. That’s the Fifth Amendment to the U.S. Constitution, and the authors were perfectly clear. No exceptions, even for non-citizens, even in time of emergency or war.

Except…there’s more…

Deportation is a civil action which the courts—including the Supreme Court have consistently held is not a punishment for a crime, even though it can have severe consequences. So technically, if a person is charged with a crime and imprisoned in the U.S., that’s an infamous crime that required due process, but if that person is deported—even to a country that will imprison them, that is not punishment for an infamous crime and does not, technically, require due process.

Except…if the U.S. has an agreement with said country to imprison reportees in said prison at the U.S.’s expense, then clearly the U.S. is acting through a third party to punish an infamous crime, and must apply due process.

Except…all the way back in 1903, Yamataya v. Fisher (aka The Japanese Immigrant Case), found that non-citizens, including those here unlawfully, are entitled to due process before being deported. In part because if not, the rights of citizens are essentially null and void. Accusation and conviction become one and the same.

Furthermore, even if some court today disagrees, the legal principle of stare decisis preculdes overturning such an old ruling without powerfully compelling cause, as overturning established law undermines the whole system of government by which the law of the fist is checked.

However, INS v. Lopez-Mendoza (1984) reaffirmed that deportation proceedings are civil, and thus criminal procedural rules do not automatically apply, but still, “due process of law” must be met. What kind of due process? Mathews v. Eldridge (1976) though not an immigration case, had already answered that question, balancing private interests and the risk of erroneous deprivation against the government’s interest and burden.

So finally, folks, there are reasons why things work the way they do. When government officals ignore those reasons, bad things happen. And when you respond emotionally to click-bait headlines instead of finding out the details, more bad things happen.

I do not know, though it seems unlikely, whether the Trump administration is giving deportees due process as defined by the law (or at all, for that matter). But I do know this, when Shakespeare wrote “The first thing we do, let’s kill all the lawyers,” it was his recipe for unchecked villainy.