What’s Due Process Done for Me Lately?

      Japanese American kids at a WWII internment camp

Purported Gang Members  in El Salvador

What’s Due Process Done for Me Lately?

Trump’s first 100 days tearing apart the federal government and marginalizing the Constitution 

“It’s more than unconstitutional — it’s anti-constitutional. It’s an effort to erase from our constitutional history and law one of the greatest struggles for human freedom in American history and reconfigure the Constitution into an instrument of domination.” 

Evan Bernick, associate professor, Northern Illinois University College of Law

“Dear marxist judges, If an illegal alien criminal breaks into our country the only ‘process’ he is entitled to is deportation.” 

Stephen Miller, one of the president’s most influential advisers, posted on X.

“We do not ask permission from far-left Democrats before we deport illegal immigrants. We do the American people’s business.” 

Vice President JD Vance in a Fox News interview.

Donald Trump’s goals, as he begins to implement his vision of a “correct thinking” nation, are reflected both in that 900-page Project 2025 treatise (which he claimed he never read and was not familiar with) and his executive orders over his first 100 days. It is in line with his most senior policy advisor, ultra-rightwing Stephen Miller. The effort is to eliminate dissent, corral those society institutions viewed as the incubators of “woke” concepts and shut them down, eliminate almost the entirety of the federal bureaucracy (“deep state”) replacing them with stern, lockstep and unquestioning Trump loyalists, and ensure that there are not three co-equal branches of government; the executive branch cannot be restrained from setting and implementing policy by unelected courts and a Congress that believes wrongly that it is a check on presidential power.

Virtually all of the President’s executive orders, seen as expedient substitutes for the cumbersome legislative process, are broadsides against the Constitution itself. This barrage is enabled by this remarkable document, labeled by former Associate Supreme Court Justice Antonin Scalia as “dead, dead, dead,” was written by men who simply assumed that those elected or appointed consistent with its terms would place “country” above “self” and protect the Constitution they swore an oath to protest. The lack of precise definitions, most notably in arenas of national security, war, invasion and national emergencies, were intended to allow the president to deal with catastrophic events that, without immediate treatment, would serve as an existential threat to the republic itself. But doctrinaire MAGA believers have a different vision of “America.”

Yet these dire “spikes” of threatening events, by definition, cannot be slow-build changes, over many years, simply by labeling them as emergencies, invasions or intolerable risks to our nation’s security. Many of the statutes that the President has used to circumvent constitutional limitations were enacted over a century or two ago and cannot, even applying the most rudimentary notion of common sense, apply to non-emergency situations. The president also is not the arbiter of the meaning of constitutional provisions, despite his and his AG’s claims to the contrary. The United States Supreme Court (and the federal courts) have been the last word in constitutional interpretation since the earliest years of the republic.

Donald Trump has not made any pretense of supporting democracy, claiming simply that focusing most national power in his hands and his hands alone was always the intention of our Founding Fathers. It clearly was not. Claiming there a path for his third term or that birthright citizenship isn’t what the Constitution says it is or that courts cannot interfere with the President in foreign policy decisions or his directive after he has declared a national emergency are the clearest evidence of the President’s total disdain for a piece of paper, the Constitution.

Where he has declared such an emergency to exist, with no standards set, he and his clearly uneducated Attorney General have declared a unitary and unappealable right to deport individuals to be tortured in foreign prisons without the very due process guaranteed in our Constitution. According to Trump this would apply not just to undocumented aliens that his henchmen declare to be criminals (without a trial)… but he believes that even US citizens could be so deported… to those same hellish prisons, which are poster-institutions for “cruel and unusual punishment” banned under the 8th Amendment to the Constitution.

Due process – defined under the 5th Amendment and carried to the states under the 14th Amendment provides neither federal nor any state government may deprive any person of life, liberty, or property, without due process of law – is as American as the First Amendment, even if Donald Trump and AG Pam Bondi, proselytize to the contrary. And no, the president cannot use governmental agencies to implement his directive of retribution against those who have opposed his interpretation of the world, his own autocratic “alternative facts.” Writing an OpEd for the April 6th New York Times, David French writes:

“Last month a federal court of appeals judge made a startling assertion. ‘Nazis,’ she said, ‘got better treatment under the Alien Enemies Act’ than people suspected of being members of a Venezuelan gang… You might think those words, spoken by Judge Patricia Millett, who sits on the U.S. Court of Appeals for the D.C. Circuit, are hyperbolic, an example of shamefully politicized language coming from a partisan judge. But they are not.

“At the height of World War II, when the United States was in greater mortal danger than at any other time since the Civil War, America respected the due process rights of people suspected of being Nazis more than it has recently respected the rights of people accused of being members of the Venezuelan gang Tren de Aragua — an extremely violent criminal group that nonetheless poses no threat to American national security remotely comparable to the threat posed by Nazi Germany…

“Due process is different. No American right requires an underlying moral commitment to justice more than the right to due process. Very few American voters actually fear a knock on their door in the middle of the night. I’ve never met an American, outside of those from the most vulnerable and marginalized communities, who fears random arrest and indefinite detention… For most Americans, ‘Defend due process or you’re next’ is not a credible argument.

“Instead, the best arguments for due process transcend self-interest. They’re aimed straight at the inherent dignity and worth of every human being. They appeal directly to the idea that each of us is made in the image of God — that each of us is endowed with unalienable rights... If you read the Constitution closely, you’ll note that our national commitment to due process — so vital that it’s mentioned twice, in the Fifth and 14th Amendments — applies not only to ‘citizens’ but to ‘persons.’ That’s because each person is endowed with unalienable rights, not just each citizen. It’s our status as human beings that grants us this dignity.”

For Americans who believe that the most efficient way to deal with the mass of undocumented aliens who live here is to get them out of the country as quickly as possible, they gloss over the rising tide of evidence that significant numbers of individuals now serving what could be a life sentence in Salvadoran hell (see above photo) have no criminal past, are not members of Tren de Aragua, and have absolutely no recourse as long as there are incarcerated in El Salvador.

I’m Peter Dekom, and even if you do not care about those deported to Salvadoran hell, take a broader look at the overall assault by the Trump administration against the Constitution itself (well beyond “due process”) and ask yourself whether the United States would be better off with an autocrat with no guardrails or if there is a better way to protect our nation.