The notion of due process has been much in the news, thanks to President Trump, whose devotion to fairness is characteristically situational: He’s all for due process when it comes to alleged spouse abusers or sexual harassers; less so, maybe, for gun owners. But as is too often true in the age of Trump, the president’s antics eclipse our capacity to focus on anything not specifically Trump-related. In recent days, that includes an all-but-ignored Supreme Court ruling that should worry anyone who believes in the importance of due process.
The fundamental question presented by the case is this: Is it constitutional to detain people in the United States, for months or even years, without providing a hearing to determine whether they should be released on bond? If that sounds like a no-brainer question of due process, it is. We do not — or should not — have in this country a system of indefinite detention without judicial review.
As Justice Stephen Breyer explained in dissenting from the court’s 5-3 ruling (Justice Elena Kagan was recused), “The Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.”
This case involves the rights of non-U.S. citizens detained while authorities decide whether they should be deported. For a change, it does not reflect excesses and constitutional insensitivities peculiar to the Trump administration; indeed, the dispute dates to the Obama administration, which also argued that these detainees did not have the right to a bail hearing. But Trump’s announced policy to end the so-called “catch-and-release” of those facing deportation makes the stakes even higher.
It’s important to remember that the right to due process applies to all persons within the United States, citizens and non-citizens alike. As Breyer put it, “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection. Whatever the fiction, would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”
So who are we talking about here? One group involves people who arrive at the border claiming the right to asylum; for these individuals, an immigration official has already made an initial determination that they have “a credible fear of persecution” if sent home. In the end, about two-thirds of these asylum seekers eventually receive permission to remain in the United States. But in the interim, they can be held for months and, in some cases, years, pending a final decision on their asylum claim. This is un-American.
Another category, admittedly less sympathetic, involves non-citizens detained by immigration authorities after being convicted of crimes and serving their sentences. If your instinct is that we should throw these bums out, fine. But consider: This group is being held for an average of 14 months while their fates are being decided, and about 40 percent eventually win the right to remain.
They include the plaintiff in the Supreme Court case, Alejandro Rodriguez, a lawful permanent resident who arrived here as an infant and was working as a dental assistant when he was picked up by immigration officials after convictions for misdemeanor drug possession and joyriding. Rodriguez served no jail time for the underlying offenses — but was then held for more than three years before challenging his detention, after which authorities concluded he was entitled to stay.
This is a complicated case involving impenetrable immigration laws. The majority, in an opinion by Justice Samuel Alito, found that the statute did not allow for bail hearings and sent the case back to the lower court to decide whether that meant the law is unconstitutional. The dissenters said the constitutional imperative of due process meant that the appeals court was correct to essentially write into the law a right to a bail hearing every six months.
My point in focusing on this case is not only to bring attention to the real risk of a constitutionally repugnant outcome. It is also to highlight the distorting effect of our Trump-centric news universe. The Trump administration’s soap opera occupies so much media attention that other matters of enormous importance go unremarked; I am as guilty of this as my peers. But we must find a way to cover Trump and cover other news at the same time. That is, if you will, the process due our readers.