Bonus 133: Due Process and the Rule of Law

Too many Americans don't understand, at a basic level, *why* the Constitution requires due process when the government deprives anyone of their life, liberty, or property.

Welcome back to the weekly bonus content for “One First.” I usually post these extra issues on Thursday mornings, but got halfway through writing this piece last night before deciding I’d just drop it today.

Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the bonus content behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

Karen’s (valid) protestations to the contrary notwithstanding, I have yet to delete the app formerly known as Twitter from my phone. Thus, I’ve had a chance to see, over the last few days, a truly dispiriting level of support for President Trump’s attempt to misuse the Alien Enemy Act as a basis for mass, summary removals of people the government claims to be members of the Venezuelan gang, Tren de Aragua (TdA)—and a truly dispiriting level of hostility directed to Chief Judge Boasberg for having the temerity to try to pause those removals while their legality is litigated. (At least the Chief Justice has entered the chat.)

Even if the Alien Enemy Act applies to TdA, which is itself quite a fraught question, how do we know that the folks who were put on those planes and flown to (and imprisoned in) El Salvador are actually part of TdA? Are we really supposed to just take the government’s word for it? The same government that filed a declaration in the D.C. Circuit Monday night in which one of its immigration enforcement officers argued, apparently with a straight face, that “[t]he lack of specific information about each individual actually highlights the risk they pose”?

All of this has led me to think a lot (and want to write) about due process—a term that most folks will quite obviously recognize, but that we perhaps don’t spend enough time discussing in detail. The central idea behind due process is that, no matter what substantive authorities the government may have, we are all entitled to at least some process when the government seeks to use those authorities to deprive us of our lives, our liberty, or our property. The amount of process that is due famously (or, for law students, infamously) varies with the circumstances; we’re not entitled to as much process in contesting a parking ticket as we are in contesting a criminal indictment. There is also variation as to whether the process must precede the deprivation (e.g., a hearing before you’re evicted from your house), or whether it can come afterwards (e.g., a hearing to restore wrongfully terminated government benefits).

But I don’t think it’s a stretch to suggest that due process is what separates democratic legal systems from … less democratic legal systems. As usual, Justice (Robert) Jackson may have put it best in 1953, in his dissent in the Mezei case:

Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.

Courts will often get the due process calibration wrong. Or they’ll misapply the correct calibration. But procedural fairness is not about obtaining some kind of epistemological truth; it’s about maximizing accuracy and minimizing the risk of error. It’s how we can have any faith that the government is using the Alien Enemy Act to remove Venezuelan gang members and not American political opponents. And now more than ever, it’s a principle all of us should be fighting for—along with the indispensable role that courts have played (however imperfectly), and can and must play, in enforcing it.

For those who are not paid subscribers, we’ll be back on Monday (if not sooner) with our regular coverage of the Court. For those who are, please read on.