The First Amendment guarantee that protects against government restrictions on press, speech, religion and right of assembly has long been considered the cornerstone of American democracy.
In rejecting British rule nearly 250 years ago, the founding fathers were determined to protect not just the majority view in society. Almost more importantly, they protected minority points of view, even the most offensive.
But just as central to a strong democracy is the Fifth Amendment protection of “due process” which ensures that all individuals cannot be deprived of “life, liberty or property” without fair and just legal procedures taking place first. The 14th Amendment extends the same Fifth Amendment rights to the states.
But due process is a concept President Donald J. Trump seemingly rejects. In Trump’s world, there are only good guys and bad guys. And if you are a bad guy (read suspected undocumented immigrant), you don’t deserve due process.
There is wide agreement among Americans that particularly those who are not legally in the country and have committed crimes should be deported. In his campaign, Trump promised to deport millions of undocumented immigrants, but especially criminals. At its current pace, the U.S. Immigration and Enforcement Service is headed toward deporting only 250,000 in the first year of his second term.
To increase the pace, the administration decided to take unprecedented shortcuts. Citing the Alien Enemies Act of 1798, the administration unilaterally declared more than 200 alleged Venezuelan gang members in the country to be terrorists and flew them to El Salvador to be held in a notorious prison. There is no indication any of the deportees received a hearing that confirmed they were in the country illegally or that they were terrorists.
The president insists he has the right to take such action and has no obligation to provide proof that they committed crimes in the United States or deserved any kind of hearing.
While anyone “proven” to be in the country illegally can be deported, there is no basis for sending them to a foreign prison. At a minimum, these individuals deserved a hearing before an administrative judge.
And just last weekend the administration also halted contracts for legal representation at immigration hearings for 26,000 unaccompanied immigrant children said to be in the country illegally.
Tens of thousands of federal employees have been fired or laid off without legally-required hearings or other actions required under Civil Service rules or the Administrative Procedures Act. Many of those layoffs and firings have been challenged in the federal courts.
Trump’s Department of Homeland Security (DHS) also wiped out three agencies: The Office for Civil Rights and Civil Liberties, the Office of Immigration Detention Ombudsmen and the Office of Citizenship and Immigration Services Ombudsmen. A total of 300 employees from these agencies will be terminated within 60 days unless they can find a job elsewhere in DHS.
What the first two agencies have in common is that they advocate for the legal rights of suspected undocumented immigrants and investigate complaints about detention, treatment and conditions under which potential deportees are held before being removed from the country. Wiping out the third agency will slow the processing of green cards and citizenship applications for those seeking them.
Perhaps we must give the department credit for transparency. In a news release announcing the cuts, DHS said the three departments “have obstructed immigration enforcement by adding bureaucratic hurdles and undermining DHS’s mission.”
There is a clear pattern that due process is viewed by this Administration as unimportant or unnecessary when it gets in the way of an Administration goal. I guess due process and ensuring one’s rights is a “bureaucratic hurdle,” but it is central to a strong democracy. If it is undocumented immigrants and civil servants who are the targets today, who is the next target?
All this is part of Trump’s view of an imperial presidency in which he can do whatever he wants. The U.S. Supreme Court will be the ultimate arbiter if he has the power that he thinks he does.
Bob Rawitch is a former L.A. Times editor and chair of the First Amendment Coalition.
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