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.
An interesting (to me) comparison in this whole discussion is the fact that had "the Biden Administration" actually "weaponized" the Justice Department in the way that the Trump Administration is doing, Donald J. Trump and his accused co-conspirators would not have been walking free and he would have had to run his 2024 Campaign from prison. Instead, he (and his accused co-conspirators) were afforded not only due process, but, exceptional due process.
I was wondering as to the status of the individuals the US sent to El Salvador. It appears that we sent them there to be incarcerated and are paying for them to be held there. Guantanamo did not work out for whatever reason. Since those individuals are being held by El Salvador because we are paying El Salvador to hold them, do those individuals have any standing to continue to litigate their cases in the United States? I recall that the enemy combatants had the right to habeas corpus because Guantanomo was under US jurisdiction, but I also recall that there was litigation to determine whether individuals held in black sites in foreign countries could litigate their detention in US courts? I just did not continue to follow those cases. It seems to me that if the administration had removed these individuals to their home countries, or even if a foreign country had agreed to take them, they would not be imprisoned upon arrival unless they were wanted for crimes in that country. These individuals seemed to be imprisoned at the behest of our government indicating that we still have control over them? Just some thoughts to which I do not know the answer. Any ideas? Anyone?
Trump’s attacks on our Constitution are reminders of Alexander Hamilton’s warning. In The Federalist No. 84, Hamilton emphasized that due process of law was crucial to our Constitution and our liberty. Hamilton quoted Blackstone, the great authority on English law (which was the law of the colonies before the American revolution):
the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to [arbitrary imprisonments], are well worthy of recital: “To bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”
Steve, great column. But I have a "process" not substantive question. I want to give my COn Law students a hyperlink to this column. But it is a paid "behind the wall" column. Is there a way to give students the link for a "behind the wall" column?
Thanks Steve for hanging in there and giving a calm and analytical "voice" to so many of us out here in the cheap seats! 😀
hi Steve - Rory beat me to the question... in my case, I'd like to re-post today's column on my Facebook page, which we've restricted to our circle of friends. "NO" is a perfectly acceptable response. Your posts are informative and so on the money. thank you!
Trump causing people to be sent to a prison in El Salvador based on his Proclamation was “the very definition of tyranny.”
As James Madison (echoing Montesquieu), fairly famously highlighted in The Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.” Trump’s abuses of Executive Orders and other missives are intended (by Trump and “his” lawyers (who swore to support and defend our Constitution)) to permit Trump to usurp the power of tyrants.
Madison (quoting Montesquieu) emphasized, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.” "[T]here can be no liberty, because apprehensions may arise lest the same [executive] or [legislature] should enact tyrannical laws to execute them in a tyrannical manner.” Where “the power of judging” is “joined with the legislative, the life and liberty of [people] would be exposed to arbitrary control, for the judge would then be the legislator.” Where the power to judge is “joined to the executive power, the judge might behave with all the violence of an oppressor.”
As a result, Madison emphasized that “the preservation of liberty requires that the three great departments of power should be separate and distinct.”
In The Federalist No. 78, Alexander Hamilton (quoting Montesquieu) also emphasized that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Hamilton further emphasized the danger of our current circumstances: “liberty” will “have every thing to fear from [any] union” of the power to judge “with either of the other departments” (executive or legislative).
Near the end, of the movie, "A Man for all Seasons", there is a courtroom scene, in Parliament, concerning Sir Thomas Moore. In it, his former student/hanger on, perjures himself, for a prize, from the crown. Sir Thomas goes into one of the most wonderful scenes, and examples of acting, about the meaning of the law, what it protects us from and for. It is worth reviewing.
A few days ago when I read the quote Prof Vladeck mentioned by ICE's Robert Cerna ("The lack of a criminal record..."), my wife can confirm that my jaw literally dropped open. Guess I didn't realize that Project 2025 took inspiration from the "Minority Report" movie.
The 'due process' abuses with those deported to Venezuela, and with Mahmoud Khalil, are not the only deeply-troubling actions happening. A French scientist was denied US entry after messages critical of Trump were found on the researcher's phone. A registered nurse (U.S. citizen) from New Jersey underwent a humiliating encounter with ICE because she reportedly "fit the description" and "looked undocumented." If you want even more sobering stories about abuses of due process, read this story about a Canadian women detained by ICE for 2 weeks and the others she encountered while in detention: https://www.theguardian.com/us-news/2025/mar/19/canadian-detained-us-immigration-jasmine-mooney.
I really don't think it dramatic or hysterical to worry that the recent Tesla arson attacks could result in an American version of the 1933 German Reichstag Fire Decree.
Thank you professor. Your footnote on the Mezei decision is topical in the light of reports today of a French scientist having been denied entry into the US because of his criticism of Trump’s cuts to science funding — criticism that could be interpreted (according to immigration authorities) as terrorism.
Here is a simple premise: when you look at 1. we are not at war, but the President declares that we are, such as a "war on drugs, 2. he then directs the arrest of a group of suspected "drug traffickers, and anyone found to be in the presence of these suspects when they are arrested, 3. these arrestees are transported to waiting planes and flown to another country to be put in prison, 4. once they are there the government (primarily the President) says "it is now out of my hands, and 5. there are never any legal proceedings involved for whoever these people are.
Now, does that sound fair to anyone? Or does it sound un-American? That's due process, children - that "that's not fair" reflex.
Reading through X posts on this case I see everything from calls for military action to demands that the Supreme Court discipline jurists. Only a handful of posters even think of impeachment! (Expecting even one poster to mention the unconstitutional revestiture in the Judicial Conference of the House's power to review grievance petitions against US jurists was far beyond reason.) Since the Department of Education seems to be under review we should consider states' lack of attention to civics. Nationalizing at least civics education is a public interest.
Thank you for calling attention to the statute establishing a court devoted to terrorism by foreign nationals. I've read a rumor (by a member of Congress) that the president has been demanding vows of fealty from members.
By expressing to what an oath is to be taken (the Constitution), Article VI bars fealty to anything else.
It bars fealty to any person or office or administration.
It bars fealty to any candidate. Pledging electors violates this among other clauses.
It bars at least political fealty to any private enterprise or entity.
It bars fealty to any political party or issue position, by candidates or anyone else.
It bars fealty to any ideology or manner of governance beyond a republican form of government within the text.
By expressing who is to take this oath (public servants), the Article prohibits imposing any oath on private citizens.
It bars "the Pledge of Allegiance" and the courts should have enforced this.
Most critically, Article VI checks "national security." With Article III §3's Treason clause, read with the Declaration's definition of an "enemy" as a nation against whom Congress has declared war, it defines national security by its violations:
1. Violating your oath to the Constitution violates national security.
2. Joining a declared war against the United States or giving aid and comfort to our opponent in war violates national security.
Nothing else can.
Since courts can already address offenses by foreign nationals, devoting a court to terrorism by foreign nationals seems another example of the bloating of this textual violation.
Courts like that one and FISC are strange to the Constitution, and arise from a 20th and so far 21st century practice of privileging information to some persons by classification. This privilege violates both Equal Privileges clauses in unequalizing the power to gather information. It, and they, pointedly violates the due process expressed in Article I §5's Secrecy clause. We vest the United States secrecy power solely in Congress and then only on a vote of 4/5+1, the highest majority the text requires - higher than ratifying its own amendment - our most narrowly exercised governance power. While corruption has damaged law and rulings since at least 1791 the hegemony we've practiced since World War I, ratified for the United Nations at Bretton Woods, has compounded it. Due process bars it. If secrecy is required for greatness in historians' usual sense, the United States is not designed for it and should abandon any aspiration to it.
I may have missed it in my readings, but I've yet to see anyone use the term rendition in describing the government's actions. I realize that perhaps they are being sent to El Salvador simply to be treated horrendously and not interrogated, but it seems very similar.
Excellent essay. Two quick points: (i) The principle of Due Process was first memorialized in the Magna Carta which, of course, was created to place limits on the royal prerogative. Trump's disregard of the principle is thus fully consistent with his articulated wish to be considered the "King"; and, more importantly, (ii) it is deeply unfortunate but plainly essential that the ideas you articulate be expressed in persuasive sound bites on the social media you mention and TikTok. I suspect that his supporters who get their news from those sources and Fox News are simply unaware of the principles and consequences you describe. (Indeed, an admittedly quick look at the Fox News website could only locate a report Justice Roberts' retort to the judicial impeachment rhetoric after much searching; it certainly was not on the site's home page.)
I was thinking about what recourse the Courts have if/when the Administration defies its orders. Would the threat of disbarment in the Federal courts be a sufficient deterrent to career attorneys, whether they are politically appointed or agency staff, to discourage them from enabling blatantly illegal or unconstitutional behavior? As you note in this piece, the attorney would need to receive due process, but the threat of not having access to the Federal Judiciary may be a consequence that many would not want to face.
Thank you, Professor Vladeck for all your outstanding efforts to support and secure the liberty of Americans (and lawful immigrants) acting lawfully! This piece is very insightful and interesting! Your eloquence and the SCOTUS opinions you presented were powerful, inspiring and useful!
Speaking of lies to support wide-spread abuses of power and abuses of people, it is worth noting that on March 18, the DOJ filed with the court a DOJ notice and declaration by an employee of the U.S. Immigration and Customs Enforcement (ICE). According to the ICE declaration, Trump's Proclamation (that America was at that moment being subjected to an “invasion” or “predatory incursion”) was posted at about 4:00 p.m. Saturday.
So ICE (not any part of our Armed Forces) is defending the U.S. against the proclaimed invasion or predatory incursion. How is ICE doing so? Within about 3 1/2 hours after Trump’s proclamation was published, ICE immediately hustled an unspecified number of people onto three airplanes to be flown out of U.S. jurisdiction. The ICE declaration did not reveal the number, but it reportedly was about 140 people.
The ICE declaration also implied that the first two planes were loaded with people who were deported “solely on the basis of” Trump’s “Proclamation.” ICE declared that “all individuals on [the] third plane had Title 8 final removal orders and thus were not removed solely on the basis of [Trump's mere] Proclamation.”
ICE declared that approximately 250 additional people were potential deportees. In the DOJ notice accompanying the ICE declaration, the Trump administration refused to publicly disclose any other “estimates as to the number of individuals” comprising the “invasion” or “predatory incursion” force that was the subject to the Proclamation. The Trump administration argued that providing such information would “disclose sensitive information bearing on national security and foreign relations.”
Nothing in ICE's declaration supports Trump’s proclamation that the U.S. is being attacked in an “invasion” or “predatory incursion” that could justify the lack of process and lack of transparency on Saturday. Trump invoked broad war powers for use regarding mere routine immigration and criminal matters.
An interesting (to me) comparison in this whole discussion is the fact that had "the Biden Administration" actually "weaponized" the Justice Department in the way that the Trump Administration is doing, Donald J. Trump and his accused co-conspirators would not have been walking free and he would have had to run his 2024 Campaign from prison. Instead, he (and his accused co-conspirators) were afforded not only due process, but, exceptional due process.
Thank you for reminding me of my worst experience as an editor on GWLR: being one of the editors on that infamous Alberto Gonzales article.
I was wondering as to the status of the individuals the US sent to El Salvador. It appears that we sent them there to be incarcerated and are paying for them to be held there. Guantanamo did not work out for whatever reason. Since those individuals are being held by El Salvador because we are paying El Salvador to hold them, do those individuals have any standing to continue to litigate their cases in the United States? I recall that the enemy combatants had the right to habeas corpus because Guantanomo was under US jurisdiction, but I also recall that there was litigation to determine whether individuals held in black sites in foreign countries could litigate their detention in US courts? I just did not continue to follow those cases. It seems to me that if the administration had removed these individuals to their home countries, or even if a foreign country had agreed to take them, they would not be imprisoned upon arrival unless they were wanted for crimes in that country. These individuals seemed to be imprisoned at the behest of our government indicating that we still have control over them? Just some thoughts to which I do not know the answer. Any ideas? Anyone?
Trump’s attacks on our Constitution are reminders of Alexander Hamilton’s warning. In The Federalist No. 84, Hamilton emphasized that due process of law was crucial to our Constitution and our liberty. Hamilton quoted Blackstone, the great authority on English law (which was the law of the colonies before the American revolution):
the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to [arbitrary imprisonments], are well worthy of recital: “To bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”
Steve, great column. But I have a "process" not substantive question. I want to give my COn Law students a hyperlink to this column. But it is a paid "behind the wall" column. Is there a way to give students the link for a "behind the wall" column?
Thanks Steve for hanging in there and giving a calm and analytical "voice" to so many of us out here in the cheap seats! 😀
This link should work:
https://www.stevevladeck.com/p/41912f9d-3317-468c-b31f-33d59d01357f
hi Steve - Rory beat me to the question... in my case, I'd like to re-post today's column on my Facebook page, which we've restricted to our circle of friends. "NO" is a perfectly acceptable response. Your posts are informative and so on the money. thank you!
Thanks!
Feel free to share it; that same link should work.
Trump causing people to be sent to a prison in El Salvador based on his Proclamation was “the very definition of tyranny.”
As James Madison (echoing Montesquieu), fairly famously highlighted in The Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.” Trump’s abuses of Executive Orders and other missives are intended (by Trump and “his” lawyers (who swore to support and defend our Constitution)) to permit Trump to usurp the power of tyrants.
Madison (quoting Montesquieu) emphasized, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.” "[T]here can be no liberty, because apprehensions may arise lest the same [executive] or [legislature] should enact tyrannical laws to execute them in a tyrannical manner.” Where “the power of judging” is “joined with the legislative, the life and liberty of [people] would be exposed to arbitrary control, for the judge would then be the legislator.” Where the power to judge is “joined to the executive power, the judge might behave with all the violence of an oppressor.”
As a result, Madison emphasized that “the preservation of liberty requires that the three great departments of power should be separate and distinct.”
In The Federalist No. 78, Alexander Hamilton (quoting Montesquieu) also emphasized that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Hamilton further emphasized the danger of our current circumstances: “liberty” will “have every thing to fear from [any] union” of the power to judge “with either of the other departments” (executive or legislative).
Near the end, of the movie, "A Man for all Seasons", there is a courtroom scene, in Parliament, concerning Sir Thomas Moore. In it, his former student/hanger on, perjures himself, for a prize, from the crown. Sir Thomas goes into one of the most wonderful scenes, and examples of acting, about the meaning of the law, what it protects us from and for. It is worth reviewing.
Thanks, Professor. Question: Are there any Justice Jacksons -- other than namesake -- on SCOTUS today?
A few days ago when I read the quote Prof Vladeck mentioned by ICE's Robert Cerna ("The lack of a criminal record..."), my wife can confirm that my jaw literally dropped open. Guess I didn't realize that Project 2025 took inspiration from the "Minority Report" movie.
The 'due process' abuses with those deported to Venezuela, and with Mahmoud Khalil, are not the only deeply-troubling actions happening. A French scientist was denied US entry after messages critical of Trump were found on the researcher's phone. A registered nurse (U.S. citizen) from New Jersey underwent a humiliating encounter with ICE because she reportedly "fit the description" and "looked undocumented." If you want even more sobering stories about abuses of due process, read this story about a Canadian women detained by ICE for 2 weeks and the others she encountered while in detention: https://www.theguardian.com/us-news/2025/mar/19/canadian-detained-us-immigration-jasmine-mooney.
I really don't think it dramatic or hysterical to worry that the recent Tesla arson attacks could result in an American version of the 1933 German Reichstag Fire Decree.
Thank you professor. Your footnote on the Mezei decision is topical in the light of reports today of a French scientist having been denied entry into the US because of his criticism of Trump’s cuts to science funding — criticism that could be interpreted (according to immigration authorities) as terrorism.
Here is a simple premise: when you look at 1. we are not at war, but the President declares that we are, such as a "war on drugs, 2. he then directs the arrest of a group of suspected "drug traffickers, and anyone found to be in the presence of these suspects when they are arrested, 3. these arrestees are transported to waiting planes and flown to another country to be put in prison, 4. once they are there the government (primarily the President) says "it is now out of my hands, and 5. there are never any legal proceedings involved for whoever these people are.
Now, does that sound fair to anyone? Or does it sound un-American? That's due process, children - that "that's not fair" reflex.
Thanks, Steve.
Reading through X posts on this case I see everything from calls for military action to demands that the Supreme Court discipline jurists. Only a handful of posters even think of impeachment! (Expecting even one poster to mention the unconstitutional revestiture in the Judicial Conference of the House's power to review grievance petitions against US jurists was far beyond reason.) Since the Department of Education seems to be under review we should consider states' lack of attention to civics. Nationalizing at least civics education is a public interest.
Thank you for calling attention to the statute establishing a court devoted to terrorism by foreign nationals. I've read a rumor (by a member of Congress) that the president has been demanding vows of fealty from members.
By expressing to what an oath is to be taken (the Constitution), Article VI bars fealty to anything else.
It bars fealty to any person or office or administration.
It bars fealty to any candidate. Pledging electors violates this among other clauses.
It bars at least political fealty to any private enterprise or entity.
It bars fealty to any political party or issue position, by candidates or anyone else.
It bars fealty to any ideology or manner of governance beyond a republican form of government within the text.
By expressing who is to take this oath (public servants), the Article prohibits imposing any oath on private citizens.
It bars "the Pledge of Allegiance" and the courts should have enforced this.
Most critically, Article VI checks "national security." With Article III §3's Treason clause, read with the Declaration's definition of an "enemy" as a nation against whom Congress has declared war, it defines national security by its violations:
1. Violating your oath to the Constitution violates national security.
2. Joining a declared war against the United States or giving aid and comfort to our opponent in war violates national security.
Nothing else can.
Since courts can already address offenses by foreign nationals, devoting a court to terrorism by foreign nationals seems another example of the bloating of this textual violation.
Courts like that one and FISC are strange to the Constitution, and arise from a 20th and so far 21st century practice of privileging information to some persons by classification. This privilege violates both Equal Privileges clauses in unequalizing the power to gather information. It, and they, pointedly violates the due process expressed in Article I §5's Secrecy clause. We vest the United States secrecy power solely in Congress and then only on a vote of 4/5+1, the highest majority the text requires - higher than ratifying its own amendment - our most narrowly exercised governance power. While corruption has damaged law and rulings since at least 1791 the hegemony we've practiced since World War I, ratified for the United Nations at Bretton Woods, has compounded it. Due process bars it. If secrecy is required for greatness in historians' usual sense, the United States is not designed for it and should abandon any aspiration to it.
I may have missed it in my readings, but I've yet to see anyone use the term rendition in describing the government's actions. I realize that perhaps they are being sent to El Salvador simply to be treated horrendously and not interrogated, but it seems very similar.
Excellent essay. Two quick points: (i) The principle of Due Process was first memorialized in the Magna Carta which, of course, was created to place limits on the royal prerogative. Trump's disregard of the principle is thus fully consistent with his articulated wish to be considered the "King"; and, more importantly, (ii) it is deeply unfortunate but plainly essential that the ideas you articulate be expressed in persuasive sound bites on the social media you mention and TikTok. I suspect that his supporters who get their news from those sources and Fox News are simply unaware of the principles and consequences you describe. (Indeed, an admittedly quick look at the Fox News website could only locate a report Justice Roberts' retort to the judicial impeachment rhetoric after much searching; it certainly was not on the site's home page.)
I was thinking about what recourse the Courts have if/when the Administration defies its orders. Would the threat of disbarment in the Federal courts be a sufficient deterrent to career attorneys, whether they are politically appointed or agency staff, to discourage them from enabling blatantly illegal or unconstitutional behavior? As you note in this piece, the attorney would need to receive due process, but the threat of not having access to the Federal Judiciary may be a consequence that many would not want to face.
Thank you, Professor Vladeck for all your outstanding efforts to support and secure the liberty of Americans (and lawful immigrants) acting lawfully! This piece is very insightful and interesting! Your eloquence and the SCOTUS opinions you presented were powerful, inspiring and useful!
Speaking of lies to support wide-spread abuses of power and abuses of people, it is worth noting that on March 18, the DOJ filed with the court a DOJ notice and declaration by an employee of the U.S. Immigration and Customs Enforcement (ICE). According to the ICE declaration, Trump's Proclamation (that America was at that moment being subjected to an “invasion” or “predatory incursion”) was posted at about 4:00 p.m. Saturday.
So ICE (not any part of our Armed Forces) is defending the U.S. against the proclaimed invasion or predatory incursion. How is ICE doing so? Within about 3 1/2 hours after Trump’s proclamation was published, ICE immediately hustled an unspecified number of people onto three airplanes to be flown out of U.S. jurisdiction. The ICE declaration did not reveal the number, but it reportedly was about 140 people.
The ICE declaration also implied that the first two planes were loaded with people who were deported “solely on the basis of” Trump’s “Proclamation.” ICE declared that “all individuals on [the] third plane had Title 8 final removal orders and thus were not removed solely on the basis of [Trump's mere] Proclamation.”
ICE declared that approximately 250 additional people were potential deportees. In the DOJ notice accompanying the ICE declaration, the Trump administration refused to publicly disclose any other “estimates as to the number of individuals” comprising the “invasion” or “predatory incursion” force that was the subject to the Proclamation. The Trump administration argued that providing such information would “disclose sensitive information bearing on national security and foreign relations.”
Nothing in ICE's declaration supports Trump’s proclamation that the U.S. is being attacked in an “invasion” or “predatory incursion” that could justify the lack of process and lack of transparency on Saturday. Trump invoked broad war powers for use regarding mere routine immigration and criminal matters.