Deport First, Lawyers Later: Trump Eyes the Nuclear Option to Break the Border Cartel

Recently, President Trump implied that suspending habeas corpus was not off the table as it pertained to the deportation of illegal aliens. I’m sure if this ever happens, the progs will scream, wail, and do everything they can to resist this. So, I wanted to take this opportunity to give it some thought. I’m going to begin by defining terms.

Due Process: a course of legal proceedings according to rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private rights. In each case, due process contemplates an exercise of the powers of government as the law permits and sanctions, under recognized safeguards for the protection of individual rights.

Habeas Corpus: Latin for “that you have the body.” In the US system, federal courts can use the writ of habeas corpus to determine if a state’s detention of a prisoner is valid.  A writ of habeas corpus is used to bring a prisoner or other detainee (e.g., institutionalized mental patient) before the court to determine if the person’s imprisonment or detention is lawful.

Okay, so American citizens are guaranteed due process of the law as well as a right to habeas corpus. Are illegal aliens guaranteed this right also? Under the 5th Amendment, it would seem that they are.

Aliens “who have once passed through our gates, even illegally,” are afforded the full panoply of procedural due process protections, and “may be expelled only after proceedings conforming to traditional standards of fairness.”  Shaughnessy v. United States ex rel. Mezei, [345 U.S. 206, 212] (1953).

This also seems to be reaffirmed by the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now, it would seem to me that because the second sentence in the above follows right after the first where Congress specifies who citizens of the United States actually are, that second part about “any person” is likely referring to citizens as well because there is no segue leading into aliens and how those should be addressed. But it says what it says, and I don’t like it when the anti-gunners start presuming things about the Second Amendment, militias only, what the Founders actually meant, etc., so Trump is stuck with that specific language. Anyway, there is also legal and court precedent for granting the right of due process, etc., to illegal aliens.

Okay, that’s where we are today. Donald Trump is trying to deport illegal aliens, and by now, it’s pretty clear that the lower federal judiciary is involved in an organized operation to stop him because they appear to be pushing for mass writs of habeas corpus in numerous deportation cases. It does point out the left’s self-contradictory ethics that they never law-fared Joe Biden or Barack Obama for their collective four million-plus deportations over 12 years. It just points out that they hate Trump and want to warp the law because of it.

Back to suspending habeas corpus. It’s been done in the past. Lincoln did it, and Roosevelt did it by executive order. Bush also suspended it for two years with congressional approval. In these cases, it was mass suspension applied to large groups of people, not unlike what Trump may be considering today. In the former two cases, these suspensions happened in a time of war and or invasion. An argument could be made to SCOTUS that we are in similar times, should that issue ever be taken up by the court. (It sort of has obliquely, but not directly.)

So we have legal and historical precedent for chief executives to suspend habeas corpus. If the president does invoke this, I’m sure the left will go nuts, but I’m not sure they’ll legally be able to prevent it from happening. So far, they’ve been successful blocking the Alien Enemies Act thing, but if Trump would take the L on that, bring them back, and then just deport them for illegal entry the next day, he’d probably get the W in the short term. But the left being the left, they will continue to fight him in the courts, which leaves them with nothing but mass challenges for all deportations. And this is where he could suspend habeas corpus to deal with it once and for all, if that is the hill they choose to die on. Their plan seems to be to block him from using the AEA, block him from deporting to a third country, and block him unless there is (what they deem as) due process.

Now comes the meat and potatoes of this piece, and I apologize for putting it at the end, but I thought it was important to lay groundwork. In 1949, Supreme Court Justice Robert Jackson, who had served as co-counsel at Nuremberg, wrote the following as it pertained to a free speech case he was involved in.

“[t]his Court has gone far toward accepting the doctrine that civil liberty means . . . that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrine logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

I could expand on what this means, but I think Thomas Jefferson does a better job than I ever could when he wrote to John Colvin in 1810:

Whether circumstances do not sometimes occur which make it a duty in officers of high trust to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property & all those who are enjoying them with us; thus absurdly sacrificing the end to the means. 

This is basically the “don’t cut your nose off to spite your face” argument. If following the letter of the law is going to send the country over the cliff, apply some common sense and don’t follow the letter. Lincoln said as much in 1861 when he suspended habeas corpus by executive order, telling Supreme Court Justice Roger Taney that he had empowered Gen. Winfield Scott to arrest, and detain, without resort to ordinary processes and forms of law, such individuals as he might deem dangerous to public safety because it served the public interest. 

And later during a special session of Congress, he said, “In nearly one-third of the States had subverted the whole of the laws … Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” It’s kind of a unique and odd argument that the left puts out there today. It wants strict adherence to constitutional law, and at the same time, it wants to violate current immigration law (which was, by the way, legally and constitutionally affirmed). And the fact that we have to grapple with this at all is due to the Democratic Party’s practice of busting the law as they soar high above it like a drone. It might make them look like children stealing out of the cookie jar when one of their judges gets caught sneaking illegal aliens out the back door, and it’s enjoyable to watch them beclown themselves, but all of this is really quite dangerous.

Illegal aliens are costly. They use points of entry that also bring in fentanyl shipments. They bring in sex trafficking. They bring in child trafficking. They bring in criminals. They bring in drunk drivers who kill others. They overload the health care system. They overload the educational system. They receive three times as much government aid as they pay for in taxes. And they send almost 70 billion dollars back home in tax-free remittances, so that they don’t have to report the income. They do this to help the families they left behind, and that’s nice, but after doing that, they qualify for government assistance that you and I get to pay for. And there are a lot of other unintended consequences that contribute down the line to fracturing the social order. So when Trump says he might suspend habeas corpus to combat the activism of the bench, he might just do it. And because there is a substantial precedent for it, maybe he should.

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