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Can Due Process Be Eliminated by a Tweet?

Jul 10, 2018 • by Jocelyn Claire Young, The LGBT Center of Greater Reading, Executive Director
LGBT Center of Greater Reading

The President tweets so many ridiculous comments that it would be very easy to ignore his tweet from the weekend of June 23rd/24th.  However, the tweet that I refer to is where the President commented about denying immigrants their Due Process Rights.  This is a slippery slope involving everyone’s Constitutional right to Due Process.  Not only are there flaws in this type of thinking from the legal perspective, but the humanitarian as well. 

First, the President seems to ignore the Constitution.  He swore to defend the Constitution and to uphold the laws the of the country.  Apparently, that does not apply when he is playing to base. 

These illegal immigrants are being criminally charged.  Once that happens rights from the First, Fourth, Fifth, Sixth and Fourteenth Amendments automatically attach to those persons.  The above amendments relate to freedom of speech; search and seizure; self-incrimination; trial by jury.  Whether these immigrants are legally or illegally present the above rights attach regardless of their immigration status.

The Supreme Court of the United States (SCOTUS) has decided this matter multiple times during the 19th century and several times in the 20th century.  During the 20th century SCOTUS determined that the Constitutional amendments attach, the First, Fourth, Fifth, Sixth and the Fourteenth, when a legal or illegal non-citizen is criminally charged.[1]  Elements of equal protection are applied to undocumented immigrants relative to educational rights.[2] Lastly, in a 2001 decision, SCOTUS decided that due process of the Fourteenth Amendment is applicable to all aliens in the United States whose presence may be or is “unlawful, involuntary or transitioning”.[3]

A comment like this from the President gives one pause to be concerned.  If the current Administration supports eliminating the enumerated due process rights of illegal immigrants, then who is to say when this Administration will attempt to eliminate the due process of the American citizen?  As American citizens we must be vigilant and challenge the Administration whenever these comments are made.

[1] Almeida-Sanchez v. US, 413 US 266 (1973)

[2] Plyer v. Doe, 457 US 202 (1982)

[3] Zadvydas v. Davis, 533 US 678 (2001)

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