Judiciary Needs To Stay In Its Lane

This has gone so far as District Judges ordering the President to return deported illegal immigrant gang members, with threats to hold administration officials in criminal contempt. The left has driven the question of who is entitled to due process and what level of due process for alleged enemy aliens and/or illegal immigrant criminal gang members. The more important question under these unique circumstances should be which branch gets to decide due process when it involves national security.

Accused MS-13 gang member and illegal immigrant Kilmar Garcia is the most prominent case right now. Kilmar illegally crossed the US border in 2011, and two courts have since denied him bond while determining he was in the US illegally. One court determined that because Garcia was an MS-13 gang member, his deportation to El Salvador should be held up as Garcia could be harmed by rival gang members. Gang units determined Garcia was an MS-13 gang member and Garcia’s wife reported him for domestic abuse twice and took out two restraining orders on him. (Fox News)

Under the Enemy Aliens Act and for being a member of a foreign terrorist organization, the Trump administration deported Garcia to El Salvator. Unbelievably, Obama-appointed District Court judge James Boasberg issued an injunction on Garcia’s deportation in an order filed after Garcia was in flight to El Salvador. Due process was Boasberg’s alleged issue with the deportation, despite the earlier court hearings and determinations. The DOJ claims Garcia is not entitled to any further due process, yet Democrats have made Garcia the poster child and are now treating him like a Medal of Honor recipient.

So “who” has the right to due process: The US Constitution begins with the words “We the People of the United States”. The words “of the United States” becomes important to understanding those rights enshrined in the Fifth Amendment due process clause, which reads in part: “Nor shall any person….. be deprived of life, liberty, or property, without due process of law.” “Any person” clearly did not mean any person (anywhere in the world at any time) without caveat. We must go beyond “any person” to at least limit those within the United States, or citizens outside the United States (outside territorial waters, for example) who commit crimes and are prosecuted in the US. 

We must also consider the preamble which defined “the people” as being “of the United States”. Native Americans who didn’t considered themselves part of the new nation wandered within and outside of the borders of the new nation stretching to the Mississippi. Similar groups from other nations contested US land, but were within our boundaries. Around a decade after the Constitution was ratified and during non-war hostilities with both Britain and France, Congress passed the Enemy Aliens Act. This allowed for the deportation of enemy aliens without due process.

No issue from the Court then. During the Civil War, Abraham Lincoln suspended Habeas Corpus and detained hundreds without due process. The Chief Justice of the Supreme Court held that Lincoln did not have the authority for suspending Habeas Corpus, but Lincoln disagreed. 

The Constitution provides: “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.” Lincoln believed he had the clear right and this was a national security issue for the executive.

Though the Constitution does not provide for the Courts to be the sole arbiter of due process and what level, the Supreme Court has actively sought to monopolize this issue. It has generally ruled that illegal immigrants should receive a level of due process rights, but caveats with subjective determinations of connections to the US and other factors. The court’s rulings have gone back and forth with inconsistency and contradictions on both due process and level of due process for illegal immigrants. As late as 2024, multiple courts of appeal held that illegal immigrants did not have the right to bear arms, which removes due process for one of our most basic rights. US Courts 

In the case of Abraham Lincoln by suspending due process for a class of actual citizens by suspending Habeas Corpus, Lincoln believed the Court did not have authority over his action.

Though the Courts have actively sought to control the due process issue, including even in national security situations, the Constitution is clear they are outside their lane. Decisions about due process rightfully fall under the other branches in certain situations, particularly when national security is at stake. Our founders never intended one branch to reign supreme, and the judiciary is not “God”. We do not owe enemies of the United States all of our sacred rights because some wish to misinterpret what “all persons” meant with due process. “We the People” put our ultimate faith in God, and not the courts.