03 May Due Process

“Should Executive Power be subject to judicial checks and balances?” – The Lonely Realist

TLR recently received the following question from a reader: “Curious what your thoughts are on Federal District Judges blocking much of the Trump agenda?” What follows is the ensuing dialogue, edited for readability but not for content.

TLR:                      In answer to your question, District Courts have been following legal precedent and proper judicial procedure. Whether the relevant precedents are correct in each instance will be decided on appeal by the relevant Circuit Courts and, ultimately, by the Supreme Court.

Reader:                President Trump disagrees. He says that District Courts have improperly stymied his actions, that judges are preventing proper law-enforcement, and that the judiciary is thwarting the will of the people who overwhelmingly elected him. He says that the Supreme Court ultimately will agree that District Courts have no power to overrule his actions.

TLR:                      The way most judges and lawyers read the Constitution, District Courts have both the Constitutional authority to block an Executive Order and the obligation to follow legal precedent.

Reader:                All well and good, but what is your opinion of the appropriateness of those District Court decisions?

TLR:                      TLR agrees with the District Courts. They are following the appropriate procedure and correctly applying existing law. The Supreme Court has the authority to determine whether existing law should be changed and it will be given that opportunity on appeal.

Reader:                Seriously? One district judge can block an Executive Order for the whole country? Isn’t that tyranny of the judiciary?

TLR:                      You are not asking a Constitutional question specific to District Court decision-making, but to decisions made by the Judicial Branch of government – that is, can the Judicial Branch block an Executive Order? Is your concern with the authority of District Courts or with the ultimate authority of the Supreme Court? As an example, do you believe that the Supreme Court’s recent stay on Venezuelan deportees and its ruling with respect to Armando Abrego Garcia are legitimate?

Reader:                I believe they’re both temporary. If that is true, then there’s not much to say.

TLR:                      The holdings are not temporary. The Supreme Court stayed the Venezuelan deportations, which were made under the Alien Enemies Act (AEA), on procedural grounds. Its decision requires that the detainees receive Constitutional protections. It held that the Executive Branch cannot continue deportations without providing those protections. Do you believe the Court’s conclusion was incorrect?

Reader:                You tell me: do 11 million illegal aliens or even one illegal alien have a Constitutional right to due process before being deported?

TLR:                      Yes. That is precisely what the Supreme Court held: “[D]etainees under the AEA must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” “Habeas relief” means that detainees have a right to judicial review prior to being deported. My question to you is whether you believe the Supreme Court’s decision is a correct one?

Reader:                No. These people are here illegally and I believe it is an Executive decision.

TLR:                      If the Executive Branch of the U.S. government has the exclusive authority to determine who is here illegally and who is not, would that be a good thing? An Executive Branch appointee would decide who is deported and he or she could choose anyone, citizen, legal immigrant or illegal alien. No court would have the ability to disagree or change the outcome. Would that be the result you’d prefer?

Reader:                Biden, Obama, Trump, etc., have no Constitutional right to allow in illegals. But they came in anyway.

TLR:                      True. Illegal persons should not have been allowed to enter the country. They should have been stopped at the border. But they, as well as legal immigrants (green card holders and citizens), now are in the U.S. and the question is who makes the determination of whether or not they are here illegally. We agree that if a person is here illegally, the Executive is the gatekeeper and has the right to deport him. What I’m asking is what the process should be. The Constitution says that alleged illegals have a right to judicial review, which is the decision the Supreme Court reached with respect to the Venezuelan detainees.

Reader:                Illegal aliens should not have the same rights as U.S. citizens. It is not fair to the immigrants who come legally. It is not fair to the legal citizens. It is devastating. In certain States they are treated like citizens. We have very limited resources for the poor regarding Medicaid etc. It is certainly not fair to the poor most of all. We are becoming a lawless society in the liberal cities and States. It’s leaking into the whole country.

TLR:                      Illegal aliens do not have the same rights. They can be jailed and deported. Legal immigrants and U.S. citizens cannot be jailed or deported because they are here in the U.S. To be clear, you nevertheless believe that the Executive Branch should have, or does have, the unlimited right to determine who is not legally in the U.S. and deport them without due process.

Reader:                Yes. What branch of government do you think it is? The judiciary?

TLR:                      No. Both are required as part of the “checks and balances” “due process” features unique to America’s Constitutional system. It’s Constitutionally correct for the Executive Branch to apply U.S. immigration law in making the determination of whether a non-U.S. person can enter the country in the first place, but it is not Constitutionally correct for one or the other Branch to solely decide whether someone already in the U.S. is here legally or illegally.

Reader:                I disagree. Anybody who gets into this country, illegally, is not a citizen and that should be solely an Executive Branch decision. Not sure how you can reconcile keeping people in the country that come in illegally and yet those who vote illegally are OK. That is really hard to comprehend for me.

TLR:                      The law is clear that people who are in the country illegally should be deported when both the Executive Branch and the Judicial Branch agree that they are here illegally. People who vote illegally should be prosecuted and penalized and, if here illegally, deported after satisfaction of due process procedures. That, too, is the law. The U.S. should have immigration laws that benefit the U.S. and the fact is that the current immigration laws are outdated and don’t work. They require amendment, a job that Congress thus far has failed to address. The Constitution makes immigration reform a Federal issue and voter fraud a State issue.

Reader:                I have a different understanding. Democrats alone want to stop/prevent all voting changes that would make them less susceptible to fraud. And the courts have improperly stymied President Trump’s actions, thwarting the will of the people who elected him.

Finally (from a good friend)