“The Department of Homeland Security today released two memoranda implementing President Trump’s executive orders on immigration and border security. The new directives eliminate earlier policies that deprioritized the deportation of immigrants who pose no threat to—and are integral members of—our communities. The directives greatly expand “expedited” and “administrative” removals, allowing Immigration and Customs Enforcement agents and Border Patrol officers to deport more people—not only at the border but throughout the United States—without any court oversight. The directives promise a massive expansion of detention of children and families seeking asylum in the United States by requiring, with limited exceptions, that officers detain any undocumented immigrant found at or near the border. The directives also reinstate the Secure Communities program and emphasize the expansion of a program that recruits local police departments and sheriff’s offices to do the work of federal immigration officers – interfering with their ability to do their job keeping communities safe as well as encouraging racial profiling. “
New York Civil Liberties Union Executive Director Donna Lieberman elaborated with respect to the effect of those rules in New York:
“The Trump regime has dramatically expanded the number of immigrant New Yorkers who could find themselves in the crosshairs of the president’s mass deportation machine. These new rules will result in thousands of lives being ruined and families being torn apart…”
“These new rules would also eviscerate the due process rights of immigrants by assigning huge numbers of immigration decisions to the unchecked authority of ICE and Border Patrol officers instead of judges – a dangerous step toward destroying even the appearance of fair procedures.”
Here’s the context for what is going on. Trump and his right-wing allies, at the same time that they are demanding Constitutional protections for the rich under Citizens United and for members of the powerful gun lobby under the Second Amendment, are flagrantly violating Constitutional protections for the poor and vulnerable.
The Fourteenth Amendment to the United States Constitution provides in part: “No state shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Thus, this Constitutional provision explicitly guarantees due process to everyone including immigrants, who are clearly people. Due process, in this context, means the right to assert one’s rights before a “neutral magistrate.” The concept of due process is that, by providing an individual a hearing before a third party – the magistrate – there is someone who can ensure that the State is not over-reaching and depriving the individual of rights that he legally is entitled to claim. If the state, acting through a police officer or customs agent, acts on its own to deprive a person of liberty and then deport him without the opportunity for a hearing, that person is unconstitutionally deprived of due process. Moreover, because that person never gets to court, he never gets the opportunity to challenge the deportation either factually, or as a matter of law.
Again, let’s lay out where Trump and the Republicans are. If you are a corporation, then under Citizens United, they say you are entitled to First Amendment Constitutional protection to spend as much money as you want to buy an election. Yet, the concept that a corporation could claim rights as a person results from new legal theories cooked up by the right-wing intellectual cartel supported by the Koch brothers and other big money. When I was in law school in the 1970s, we were correctly and explicitly taught that a corporation is not a person. Furthermore, if you are a mentally deranged domestic terrorist, Trump and his minions say you have a Second Amendment Constitutional Right to own an assault weapon. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” It was written expressly about the right to bear arms in a militia – not unreasonable when there was no standing army – but was never traditionally considered to have much to say about reasonable gun control. But that was before the National Rifle Association became a major political power. So Trump protects corporations and gun nuts. But, if a federal officer thinks you look like an immigrant and you cannot satisfy him that you are legally in the United States, you can be arrested and deported without any judicial proceeding whatsoever, even if it turns out that the officer was factually or legally wrong.
To be blunt, according to Trump and his cronies, the law is for the rich or for those protected by the powerful gun lobby. If you are poor and disenfranchised, you need not apply. This is at once intellectual nonsense and morally reprehensible. Nothing new for Trump.