Due Process Reversal
Trump administration tactics aim to roll back constitutional law
Kaouro Yamataya was young and pregnant when she reached Seattle almost 125 years ago. A Japanese citizen, she hoped to start her life in the United States in that city’s Japanese community. At first, it seemed she might, settling into a boarding house popular with Japanese migrants. Four days later immigration officials had second thoughts. A provision of federal immigration law that Congress had only recently enacted let officials deport a migrant that they could have kept out of the country. A separate law let officials bar poor people.
Yamataya was new to the United States, but she wasn’t about to let immigration officials yank away the permission that they had granted her to live here. Not without a fight at least. By the time the legal ordeal was over, Yamataya had dragged the federal government all the way to the U.S. Supreme Court where she secured a legal victory that the Trump administration has made newly relevant.
Federal officials could have kept Yamataya out of the United States when she first reached port on board the SS Kaga Maru, but they didn’t. She had followed the law and now it was the federal government’s turn to do the same thing. A migrant who has been allowed to enter the United States can’t “be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States,” wrote Justice John Marshall Harlan on behalf of a majority of his colleagues on the Court. Without an opportunity to contest the government’s claims, immigration officials would possess “arbitrary power” that conflicts with the principle of due process of law.
Stretching back to the year 1215 when the English monarch King John met a group of rebellious lords at Runnymeade, north of London, and ceded some of his royal powers, due process has been part of the U.S. legal tradition since before there was a United States. It remains such a foundational pillar of the U.S. legal system that it appears in the U.S. Constitution twice: in the Fifth Amendment, which applies to the federal government, and the Fourteenth Amendment, which applies to the states. Neither the federal government nor the states may deprive a person of life, liberty, or property without due process of law. In Yamataya v. Fisher, the Supreme Court left no doubt that this constitutional guarantee applies to U.S. citizens as well as migrants, like Kaouro Yamataya, who had been granted permission to enter the United States.
Yamataya won her legal fight only to see it undercut by the details of the Supreme Court’s position. Congress gets to set the terms of the hearing that the Constitution requires and a hearing, as Yamataya soon learned, can mean all sorts of things. She claimed that she didn’t know that the government official who approached her after she had moved into the Seattle boarding house was investigating her possible deportation. She doesn’t understand English, she added, and didn’t have help from friends or a lawyer. She could’ve pointed out, though she didn’t, that she was just a child; she was most likely around fifteen years old. All of that might be true, the Supreme Court explained, but her failure to understand was nothing more than “her misfortune.”
Since then, Congress and the courts have breathed much more life into the Due Process Clause. Interpreters are common in immigration proceedings. Migrants have a right to hire an attorney (though many are unable to). Notice of the government’s claims are supposed to be issued formally with references to specific facts and laws that make a person removable from the United States. And migrants are supposed to be given a reasonable amount of time to figure out if they have a legal defense to mount.
The Trump administration is trying to return to the bare-bones version of due process that Yamataya experienced. “We cannot give everyone a trial, because to do so would take, without exaggeration, 200 years,” President Trump wrote on social media. Within the Departments of Justice and Homeland Security, the two primary units responsible for immigration policy, Trump’s immigration staff is turning his claim into reality. Sirce Owens, acting director of the Executive Office for Immigration Review, the Justice Department unit that oversees immigration courts, recently instructed immigration judges to dismiss some asylum claims without a hearing.
Meanwhile, the Immigration and Customs Enforcement agency says that twelve hours is a reasonable amount of time for migrants to challenge the government’s use of the Alien Enemies Act. In a court filing, Carlos D. Cisneros, a senior ICE official in Harlingen, Texas, told a federal judge that the agency is committed to giving migrants “a reasonable amount of time, and no less than 12 hours,” to inform ICE that they plan to request judicial intervention. After that, the migrant will be given at least twenty-four hours to launch the legal challenge by filing a writ of habeas corpus in a federal district court, a difficult task given the complexity of habeas proceedings and lack of qualified attorneys willing and capable to handle these cases.
For Yamataya, the legal victory at the Supreme Court proved weak. She was eventually deported. Today, existing immigration law gives federal officials broad power to detain and deport migrants. Prior administrations managed to remove hundreds of thousands of people annually even as they complied with procedural requirements. The Trump administration could too. By pushing procedural protections to a minimum, the Trump team is instead setting up legal fights that force courts to explain just how much constitutional law has reverted to the early twentieth century.
This administration doesn't care about procedural requirements. They don't care about the courts. This is a shock-and-awe strategy designed to be a spectacle and to serve as a deterrent. The suffering of noncitizens and migrants is the plan.