Of the endless torrent of illegal, unconstitutional — and anticonstitutional — actions flowing from the Trump administration, there are three that stand out for their contempt for the rule of law.There is the president’s ongoing assault on the right to due process, seen in his administration’s refusal to facilitate the return of Kilmar Armando Abrego Garcia, the Maryland man who was arrested in Baltimore in March and removed to a prison in El Salvador. Not only is the White House ignoring an order from the Supreme Court that sought to bring Garcia back to the United States, but its spokesmen also insist on tarring Garcia as a “terrorist” and “human smuggler” in an escalating series of attacks on his character.Other Republicans, it should be said, have backed the administration on this point, insisting that due process does not apply to undocumented or unauthorized immigrants. “When it comes to due process, that is a privilege reserved for American citizens,” Representative Byron Donalds of Florida, a vocal ally of the president, said on NBC. Donalds should probably consult the Constitution, which makes no mention of citizenship or immigration status in either of the two amendments, the Fifth and the 14th, that guarantee the right of due process to all “persons.”If the framers and ratifiers of these amendments had intended to differentiate between citizens and noncitizens, they would have done so. That is especially true for the authors of the 14th Amendment, who were preoccupied with questions of rights and citizenship and who dealt with nativism and anti-immigrant sentiment within their political coalitions. They could have written a due process clause whose protection went only as far as native and naturalized citizens. They chose not to.The second incident is the suggestion, by the White House deputy chief of staff Stephen Miller, that the president might suspend habeas corpus to keep federal courts from releasing the administration’s detainees — thus blocking its efforts to remove, among others, some lawful residents from the country. “Well, the Constitution is clear,” Miller said in a briefing with journalists last week outside the White House, “that the privilege of the writ of habeas corpus can be suspended in a time of invasion.” It’s an option, he continued, that the administration is “actively looking at” and that “depends on whether the courts do the right thing or not.”Habeas corpus — medieval Latin for “you have the body” — is a proceeding used to adjudicate the legality of any given individual’s detention, incarceration or imprisonment. When a judge issues a writ of habeas corpus, the government has to prove that it is the lawful custodian of the individual in question. Habeas corpus is one of the oldest principles in the English legal tradition, dating to the 13th century. And it was of special significance to Americans, whose rebellion led Parliament in 1777 to suspend habeas corpus in what the legal scholar Steve Vladeck describes as an “unprecedented” manner. The language of this suspension, he writes, “set a dangerous precedent for future suspensions in England, suggesting that Parliament could displace the writ based upon status, and without either of the constraints (necessity and duration) that had characterized every previous suspension.”Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber? Log in.Want all of The Times? Subscribe.
CONTINUE READING