Trump Seeks to Bypass Due Process at Border
Posted June 24, 2018 11:23 p.m. EDT
Updated June 24, 2018 11:29 p.m. EDT
President Donald Trump unleashed an aggressive attack Sunday on unauthorized immigrants and the judicial system that handles them, saying that those who cross into the United States illegally should be sent back immediately without due process or an appearance before a judge.
“We cannot allow all of these people to invade our Country,” Trump tweeted while on the way to his golf course in Virginia. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”
It was another twist in a head-spinning series of developments on immigration since the administration announced a zero tolerance policy two months ago, leading to the separation of children from parents who cross the border illegally and an outcry from Democrats and many Republicans. Trump signed an executive order to end the separations last week, but the sudden shifts have led to confusion along the border about how children and parents will be reunited and to turmoil in Congress as the House prepares to vote on a sweeping immigration bill this week.
Still, the president, who has always dug his heels in when criticized, has not backed back down from his hard-line talk, even amid a national outcry over a detainment policy that has resulted in the separation of more than 2,300 children from their families.
He has instead gone on the offensive, complaining to aides about why he could not just create an overarching executive order to solve the problem, according to two people familiar with the deliberations. Aides have had to explain to the president why a comprehensive immigration overhaul is beyond the reach of his executive powers.
And privately, the president has groused that he should not have signed the order undoing separations.
“Our system is a mockery to good immigration policy and Law and Order,” Trump tweeted Sunday, adding, “Our Immigration policy, laughed at all over the world, is very unfair to all of those people who have gone through the system legally and are waiting on line for years! Immigration must be based on merit.”
But Trump’s call to ignore due process faced both constitutional questions and dissension from Republicans in Congress, some of whom have insisted that the number of judges be increased so migrant families can have their cases heard more quickly. Federal immigration courts faced a backlog of more than 700,000 cases in May, and cases can take months or years to be heard.
Sen. Ted Cruz, R-Texas, has proposed doubling the number of judges to roughly 750, while Sen. Ron Johnson, R-Wis., chairman of the Senate Homeland Security Committee, said Sunday on CNN’s “State of the Union” that he believes an additional 225 judges are needed. He noted that only 74 of the current immigration judges are serving at the border.
“We need to increase that,” Johnson said. “The Trump administration is going to try and come up with another 15,000 beds for family units. But none of this is easy.”
The House bill up for a vote this week would beef up border security and provide a path to citizenship for the young unauthorized immigrants known as Dreamers, while also effectively codifying Trump’s executive order by allowing migrant families to be detained together indefinitely.
Many on Capitol Hill believe legislation is necessary to deal with the order, since it allows indefinite detentions. Under a 1997 consent decree known as the Flores settlement, migrant families can be detained for no more than 20 days, leaving the order’s status in court in doubt. But the president’s conflicting statements are complicating legislative efforts, said Sen. Jeff Flake, R-Ariz.
“It makes it very difficult,” Flake said on ABC’s “This Week,” continuing, “It’s difficult in any event, right, in an election year where the president has decided to have this at the forefront of the Republican election strategy to paint the Democrats as soft on immigration.”
He added: “I don’t know how in the world we’re going to fix this in the short term, given the Flores decision and given the lack of infrastructure, judges to process these claims. It’s really a big mess.”
Trump’s tweets Sunday threw new legal questions into the puzzle. Laurence H. Tribe, a constitutional law professor at Harvard, said in an email that the Supreme Court has repeatedly held that “the due process requirements of the Fifth and 14th Amendments apply to all persons, including those in the U.S. unlawfully.”
“Trump is making the tyrannical claim that he has the right to serve as prosecutor, judge and jury with respect to all those who enter our country,” Tribe said. “That is a breathtaking assertion of unbounded power — power without any plausible limit.”
The Fifth Amendment mandates the due process of law, and the 14th Amendment, in part, expanded due process rights for immigrants, with case law asserting those rights dating back to 1886. But Justice Department lawyers under both Democratic and Republican administrations have argued that noncitizens apprehended at the border lack due process protections, said Adam Cox, a law professor at New York University, and the Supreme Court has never clearly resolved the dispute.
Since Trump was elected, his administration has been working to expand the terms of a 1996 statute that allows immigration officials to quickly deport unauthorized immigrants as well as those whose papers are believed to be fraudulent. The Trump administration has the ability to expand the statute to encompass the entire country and apply it to any noncitizen who has not been in the country for more than two years, Cox said.
“One of the things that is being considered is an expanded expedited removal to the full statutory limit,” he said, adding that “it is already true that a lot of people show up at the border get removed with no access to immigration courts or the judicial process.”
Cox said the president could be reacting to seeing a high number of people held in detention centers claiming they face harm back home. The White House did not immediately respond to a request for comment on whether the president knew the legal ins and outs of his demand.
“Many members of the administration seem to think that the high rate necessarily means a lot of fraud,” Cox said of asylum claims, “so what they could like to do is remove that process.” Attorney General Jeff Sessions, who has made illegal immigration a focus of his career, has moved to back up the president’s words with action in recent months. In April, Sessions announced a zero tolerance immigration policy, which set off the mass separation of families that the president sought to end with his executive order last week.
Criminal prosecutions for illegally crossing the southwestern border jumped to 8,298 in April, the month Sessions announced the zero-tolerance policy, an increase of 30 percent from March, according to data from the Transactional Records Access Clearinghouse, a research institute at Syracuse University. Last week, the Defense Department lent 21 lawyers to the Justice Department to focus on prosecuting a backlog in border crossing cases. And on Sunday, Defense Secretary Jim Mattis said the Pentagon was looking at using two bases to hold an unknown number of migrants, though he would not comment on their location or whether they would house children.
Omar Jadwat, director of the Immigrants’ Rights Project at the American Civil Liberties Union, called the president’s demand to dispense with due process illegal. “Any official who has sworn an oath to uphold the Constitution and laws should disavow it unequivocally,” he said.
Trump’s call to end due process is not a total surprise — he has alluded to taking similar measures for weeks. While in Las Vegas on Saturday, Trump told supporters that he thought the immigration system needed fewer judges. Trump also suggested last week that he opposed adding judges because many of them could be corrupt.
He has long been a critic of immigration judges, saying they were not effective in stopping the flow of people coming into the country, sometimes using incorrect numbers to make his point.
“We have thousands of judges. Do you think other countries have judges?” Trump said during a round-table discussion in May. “We give them, like, trials. That’s the good news. The bad news is, they never show up for the trial. OK?”
There are actually fewer than 400 judges dedicated to such work, according to the website PolitiFact.
Trump also tweeted Friday that Republicans should “stop wasting their time” on the broad House immigration bill, but Rep. Michael McCaul, R-Texas, chairman of the House Homeland Security Committee, said on “Fox News Sunday” that he had spoken to the White House, which had assured him that Trump was “still 100 percent behind us.”
Trump’s careening from one extreme to another has been a staple of his campaign and presidency, allowing people to hear what they want in what he says — and leaving his White House to sort through a messy pile of conflicting directives and Congress to grasp for clues about which bills he might support.
The prospects for the House bill are iffy at best; some conservatives are balking at the citizenship provisions, which critics regard as “amnesty.” If it fails, McCaul said the House may be forced to consider a narrower measure that would address only the issues surrounding detention of migrant families.
“I think we at a minimum have to deal with the family separation,” McCaul said. “I’m a father of five. I think this is inhumane and I think the pictures that we have seen — that’s not the face of America.”