Stephen Miller is a longtime anti-immigrant activist who has since parlayed his white nationalism into multiple senior roles in the White House. As President Donald Trump’s Deputy Chief of Staff and Homeland Security Advisor, Miller has been instrumental in defending the administration’s abduction and rendition of hundreds of people it claims are members of Tren de Aragua, a transnational gang that Trump says “invaded the United States” and is “conducting irregular warfare.” The administration is now embroiled in litigation in part because it did not bother to check if the people they snatched off the street were members of TdA before shipping them off to a notorious megaprison in El Salvador.
Worse yet, the White House claims it is under no obligation to do so. The government’s view, as characterized last week by D.C. Circuit Judge Patricia Millett, is that it can remove people “with no notice, no hearing, no opportunity—zero process—to show that they are not members of the gang, to contest their eligibility for removal under the law, or to invoke legal protections against being sent to a place where it appears likely they will be tortured.” Millett concluded, “The Constitution’s demand of due process cannot be so easily thrown aside.”
On Tuesday, Miller took to Twitter to expound on constitutional law as the administration understands it. “Friendly reminder,” tweeted Miller, a man who has never known friendship. “If you illegally invaded our country the only process you are entitled to is deportation.”
The Due Process Clause of the Constitution says otherwise. Under the Fifth and Fourteenth Amendments, the government cannot deprive any person of life, liberty, or property without due process of law. And at minimum, due process requires that the government let you know when it might curtail one of those rights, and give you a chance to contest the charges in front of a neutral adjudicator. Miller nevertheless joined Fox News host Jesse Watters on Tuesday and continued his anticonstitutional diatribe, irritated by the idea that people he labeled illegal could still have rights.
“They have the temerity to say that every single invader that Joe Biden let in should get their own individual judicial trial before they’re deported,” said Miller. “One at a time. Each one. A million-dollar trial in front of a communist judge to decide whether or not we can send them home,” he continued. “How about, ‘Hell no’?”
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In addition to all the factual errors, this is simply not how due process works. Miller’s claim is that people should not get due process because they broke the law, but this puts the cart before the horse: Only through due process can a judge determine whether anyone actually broke the law. Furthermore, the Due Process Clause does not protect only citizens, or only law-abiding citizens, or only law-abiding people with lawful immigration status. It protects people. And no matter how much it may upset Miller and his ilk, immigrants are, in fact, people who have rights under the Constitution, as the Supreme Court has long recognized. “Whatever his status under the immigration laws, an alien is surely a person in any ordinary sense of that term,” wrote Justice William Brennan in 1982 in Plyler v. Doe. “Aliens, even aliens whose presence in this country is unlawful, have long been recognized as persons guaranteed due process of law by the Fifth and Fourteenth Amendments.”
Miller’s view to the contrary is disturbingly common among high-profile Republicans. Last Friday, Representative Victoria Spartz, who represents Indiana’s Fifth District in Congress, got shouted down at a town hall after claiming the Constitution does not apply to the people Trump wants to disappear. “There is no due process if you come here illegally because you violated the law, period,” she said. “You are not entitled to due process. Legal abiding citizens are.” Again, Spartz is missing the point of due process: finding out if the asylum claims she prematurely deemed meritless do have merit after all.
A few days before that, Tom Homan, whom Trump named “border czar” in November, sat for an interview about Trump’s mass deportation scheme with Jonathan Karl of ABC News. Karl questioned Homan’s claim the deportees were gang members; extensive reporting has already revealed that many, and perhaps most, are not. “Do they get a chance to prove that before you take them out of the country and put them into a notorious prison in a country that they’re not even from?” Karl asked. “I mean, do they have any due process at all?”
Honan was aghast at the suggestion. “Due process? What was Laken Riley’s due process?” he said, referring to a young white woman who was raped and murdered by an undocumented immigrant, and whose death white nationalists treat as legal justification for kicking random immigrants out of the country. Honan kept at it, asking where due process was for “all these young women that were killed and raped by members of TdA.” This is, again, a red herring; setting aside Homan’s dubious premises, under the Constitution, the presence of crime, somewhere, committed by someone, maybe, does not justify seizing people without due process and sending them to a foreign gulag.
Republicans’ effort to dispose of due process matters because, historically, the denial of due process has facilitated some of the country’s worst abuses. The last time a president claimed the authority to round up “invaders,” President Franklin D. Roosevelt sent more than 100,000 Japanese-Americans into internment camps during World War II; this time, it’s Trump sending Venezuelan people to a Salvadoran prison. To try and keep there from being a next time, the Constitution says due process is a right. Republicans say it is a privilege instead.
