I have often wondered if Border Patrol agents, should they run across people crossing the border, could simply move them back across or stop those who were attempting to cross. For the most part, I don’t think the Department of Homeland Security has answered this question, nor do I think that Judge Andrew Napolitano has answered this question when he spoke about people must have due process before deportation. Yet, I agree with his assessment when people are discovered inside the borders of the united States.
Let me explain for those who don’t fully consider. In order to determine if someone is here illegally, it must be proven that they are here illegally. You can’t determine that by dialect, skin color or things of that nature. With that in mind, it seems easy enough that if Border Patrol catches someone crossing the border, they are violating the law, but this article isn’t that and I’ve not gotten a specific answer from Border Patrol regarding that question, even though I’ve phoned and emailed about it.
Consider that Napolitano considers President Trump to be his “friend.” This is not an issue of friendship, but justice and law.
Last weekend, President Donald Trump argued that those foreigners who enter the United States unlawfully should simply be taken to the border, escorted across it and let go. According to the president, this would save precious government resources, avoid the business of separating children from their parents and free up the Border Patrol and other federal assets to do their jobs.
He is undoubtedly correct on the beneficial consequences to the government of forced deportation without due process. Yet deportation without a trial is profoundly unconstitutional.
Now, Trump was shooting from the hip here. Like the comment he made regarding guns, in which he sought to bypass the protections of the Fifth Amendment and due process, the same is true here.
In fact, Napolitano stated that the government has “essentially taken the position that those physically present in the U.S. illegally have few constitutional rights and thus family members who arrive together can be separated, no matter the psychological or physical consequences. This forced separation is not novel to the Trump administration, but its massive scale in the present toxic national political environment has painfully brought it to our collective conscience.”
Now, for those who think it ok to separate parents from children when no crime has been determined, I would appeal to the Fifth Amendment, as I did in the case of the Bundys and others in Oregon and Nevada. The Fifth Amendment applies to all that are in the US, as there is not specifics as to citizen or alien because as our founders wrote, “…all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” They didn’t say “US citizens,” but all men, and I agree with them.
The forced separation by the government of children from their parents without a trial when neither is a danger to the other is child abuse or kidnapping or both. When federal authorities engage in such morally repellant behavior — whether as a negotiating technique to bring the president’s political adversaries to the bargaining table or to coerce the immigrants to go home — it exposes them to state prosecution because of the acute and long-term harm they have caused to the children.
Now, facing pressure in the media, Trump did sign an executive order that permitted but did not require, immigration authorities to reunite the children and their parents.
Of course, there are people who think it’s just fine to do so, even though we have multiple reports of children being trafficked through the foster system in the US, including illegal alien children.
“He cannot lawfully or morally reject his oath to uphold the Constitution,” wrote Napolitano. “Denying due process on the basis of alienage is tantamount to denying the personhood of undocumented foreigners as the U.S. once did to slaves and does today to babies in the womb. And that denial is a slippery slope, at the bottom of which lie tyranny and misery.”
Napolitano then chides:
The president took an oath to preserve, protect and defend the Constitution. The Fifth Amendment to the Constitution provides in relevant part that “no person shall be … deprived of life, liberty, or property, without due process of law.” This is the so-called Due Process Clause, and it essentially prevents all governments from impairing the life, liberty or property of any human being on American-controlled soil without a fair trial.
Because the Supreme Court has ruled that there are no word choice errors in the Constitution and the words of its text mean what they say, the Framers must have carefully and intentionally chosen to protect every person, not just every citizen. “Person,” in this context, has been interpreted to mean any human being on American-controlled soil against whom the American government is proceeding, irrespective of how the person got there.
This protection is so profound and universally understood that when the George W. Bush administration rounded up what it thought were the collaborators, enablers, supporters and relatives of the 9/11 murderers whom it thought were here unlawfully, it recognized their due process rights and afforded them trials before deportation. The government actually lost many of those cases, and innocents were not deported.
Hundreds of books and law review articles have been written about due process. Here we are addressing procedural due process, which has three components. The first is notice. The person against whom the government is proceeding is entitled to a written statement specifically articulating his alleged wrongful behavior sufficiently prior to trial. Once notice is given, the government is hard-pressed to alter the charges.
The second component of due process is the requirement of the government to prove its charges against the person to whom it has given notice before a neutral judicial official, not one who works for the entity that is proceeding against him.
The third component of due process requires that the entire proceeding against the person be fair, that it appears to be fair and that the outcome be rational. The judge can decide whom to believe, but she cannot, for example, decide that 2+2=22, as that would be irrational. Fairness also includes the right to an appeal.
Look, this is not the first time Trump has spoken out of emotion rather than sound constitutional understanding. While it may be that illegals who are living in the US may have been detained and separated, we are, for the most part, speaking about those coming over the border. However, even those who may be arrested while living in the US should have a swift trial to determine whether they are, in fact, living here illegally or whether they are legal.
Napolitano warns that if due process goes by the wayside, so do all other liberties that are to be protected by the Constitution. I agree with him. I don’t like illegal immigration, but just because someone stands accused of a crime does not make them guilty, and we must remember that not matter how much the media and politicians want us to think otherwise.
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