Donald Trump’s Due Process Dilemma

More than once in recent days, President Trump has complained about due process, as it relates to his campaign promise to deport a millions of illegal migrants. Asked by a reporter if the Fifth Amendment’s requirement that “no person” will be deprived of life, liberty or property without due process of law applied to illegal migrants, Mr. Trump responded, “"I don't know, It seems it might say that, but if you're talking about that, then we'd have to have a million or 2 million or 3 million trials. We have thousands of people that are some murders and some drug dealers and some of the worst people on earth, some of the worst most dangerous people on earth, and I was elected to get them the hell out of here and the courts are holding me from doing it."

In challenging the due-process clause —- which, by the way, also appears in the 14th Amendment, thus imposing the same obligation on state and municipal governments as on Uncle Sam —- the president is seeking to undermine a right that has roots running back to the 13th century. It’s a right that has been as near and dear to the hearts of nobility and capitalists as it is to the common woman and man. The English King John was forced by his barons to sign the Magna Carta in 1215. It was the leading noblemen of the realm who required that the world’s first due-process clause be included in this seminal document. It wasn’t included for the benefit of the commoners. It was included for the benefit of these selfsame barons and earls. In fact they probably little suspected how this concept of due process would become a shield from tyranny for countless millions in the Anglo-American system of law.

Specifically, Clause 39 of Magna Carta provided, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

When I say that the Fifth Amendment’s due-process clause is near and dear to capitalists, I am relying on Supreme Court precedents, some more than a century old. For example, in Munn v. Illinois [94 U.S. 113 (1877)], the Court expressly stated that the United States “equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law.” Likewise, in Gosjean v. American Press Company [297 U.S. 233 (1936)], the Court reiterated that “a corporation is a ‘person’ within the meaning of the equal protection and due process of law clauses.”

One might fairly say that corporate “personhood” was at the heart of the constitutional crisis that we associate with President Franklin Roosevelt’s court-packing proposal. Per the National Archives:

[After] Franklin Roosevelt’s New Deal [was] enacted, it did not take long for the laws to get challenged in the courts. From Social Security to a spate of other laws meant to revamp an economy deep within the Great Depression, the New Deal was not an easily won victory for Progressives, and sometimes not a victory at all.

On what has come to be called “Black Monday”–May 25, 1935–the Supreme Court unanimously ruled  on two cases that each struck down major portions of Roosevelt’s New Deal. The first case to be ruled unconstitutional was the Frazier-Lemke Emergency Farm Mortgage Act,* part of the New Deal designed to prevent debt-ridden farmers from losing their land. In a second ruling, the National Industrial Recovery Act, a major cornerstone of the New Deal, was struck down by a vote in the courts, ruling that the Legislative had given too much unchecked power to the Executive, and violated the due process clause of the Fifth Amendment.

Roosevelt was having a bad day, but would not go down without a fight.

Roosevelt introduced the Judiciary Reorganization Bill in his first Fireside Chat following his reelection in 1936.  More New Deal laws had been declared in the interim, and by 1937, Roosevelt was ready to hit back. “We have,” Roosevelt spoke, “reached the point as a nation where we must take action to save the Constitution from the Court, and the Court from itself.”

(*In Louisville Joint Stock Land Bank v. Radford [295 U.S. 555 (1935)], the Emergency Farm Mortgage Act was ruled unconstitutional because it deprived secured creditors of their property rights, in violation of the Fifth Amendment. Of course, these secured creditors were banks, and these banks were “persons” per the Fifth Amendment.)

My point here is a simple and straightforward one: Until the 1930s, corporations were the “persons” benefiting most from the protection of the Fifth and Fourteenth Amendments’ due-process clauses. And, while a course change by the Supreme Court, remembered as the “switch in time that saved the nine,” forestalled FDR’s court-packing plan, due process remains to this day a major weapon in corporate America’s not-infrequent challenges to government regulations. Not only do corporations regularly have recourse to the Due Process Clause to challenge government regulations, arguing that they are infringing on their rights, including property rights and the right to contract. They have fought for and won other rights as “legal persons” under the Bill of Rights. For instance, “American politics and elections received a shock in 2010 when the US Supreme Court handed down its landmark decision in Citizens United, which said that corporations have the same First Amendment right as individuals to spend money on election advertisements. The decision triggered a new era of ‘dark money’—hidden, anonymous funds used to support candidates and skirt campaign disclosure laws—and has become a symbol of the outsized influence of business corporations on American democracy.”

Thus, while corporations qua “legal personhood” lost some ground during the New Deal, they certainly have recaptured that terrain and perhaps more in the 21st century. Thus, like England’s 13th century nobles, America’s 21st century corporations have a very big dog in Donald Trump’s due-process fight. Chafing at Trump’s tariffs, corporate America is already much troubled by the direction the Trump Administration is trending. I shall be very surprised if these same “legal persons” (and , of course the flesh-and-blood executives and directors who run them) will be passive or sanguine about the subversion of due process.

And yet, without a dramatic reorientation of the fundamental components of due process, or a brazen disregard of the judiciary, Mr. Trump is most certainly right: he simply can’t fulfill his campaign pledge on immigration.

What, exactly, are the main components of due process? The general consensus is that they are:

1, An unbiased tribunal.

2. Notice of the proposed action and the grounds asserted for it.

3. Opportunity to present reasons why the proposed action should not be taken.

4, The right to present evidence, including the right to call witnesses.

5. The right to know opposing evidence.

6. The right to cross-examine adverse witnesses.

7. A decision based exclusively on the evidence presented.

8 Opportunity to be represented by counsel.

9. Requirement that the tribunal prepare a record of the evidence presented.

10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

Arguably, not every base needs to be touched, depending upon the nature of the threatened deprivation. But Mr. Trump is right in the main. So… will he be able to persuade a majority of the Supreme Court Justices (when, inevitably, one or more or many of the challenges to this migrant deportations reaches the Court) that no due-process need be accorded the deportees? This seems extremely unlikely, even with the composition of today’s Court. And, indeed, Trump’s first couple of forays into the Court’s hallowed halls seem to support this conclusion.

If not, then might the six conservative Justices give the Trump Administration some less-demanding, compressed, or streamlined checklist of due-process elements? Like the New-Deal-Era Court, that saved itself from the packing legislation by adjusting its view of due-process, might this Court —- already being defied by the Trump Administration, which thus far has failed to “facilitate” the return of one such deportee—- find its way around the confrontation. “Legal experts say Trump is right that the Constitution does not guarantee a ‘trial’ for every migrant detained and ordered deported at the border or inside the country. In fact, migrants in the country illegally do not have extensive procedural protections from removal.” (ABC News)

"Detainees are entitled to notice and opportunity to be heard appropriate to the nature of the case," the Supreme Court unanimously stated last month in a per curiam (unsigned) opinion. I sense wiggle room here. Note too that ICE last year managed to deport more than a quarter million migrants.

Thus, there should be some room to maneuver here. Can the ICE process be streamlined even more, enabling the Trump Administration to post a substantial uptick in legal deportations, sufficient to satisfy his constituency, while affording the deportees the bare minimum of due process a Supreme Court majority is willing to swallow to avoid a constitutional crisis? This, I think, is the sweet spot Mr. Trump and his attorneys need to find… the compromise that keeps both the Court and his constituents (some of which, by the way, are expressing concern about his methods to date) content.

That, it seems to me, is the sensible path for Trump to take in the face of his due-process dilemma. Due process is just too fundamental a principle, even to conservatives and corporations, for him to run the risks inherent in a posture of absolute defiance. Unless it actually is his goal to force a constitutional crisis in furtherance of an authoritarian take-over of the federal government —- a possibility that I wouldn’t rule out —- finding that “Goldilocks” definition of due-process that balances efficiency with minimal constitutionality is the way for him to go.