What Is Due Process? Courts Push Back as Trump Moves to Limit This Right

In President Donald Trump’s second term, one phrase keeps showing up: “due process.”

Many of Trump’s critics claim that many actions taken by his administration violate due process, including terminating federal workers, freezing federal grants for universities and targeting law firms the White House sees as its enemies.

But the president is testing his ability to challenge due process most frequently in the area of immigration. The administration has invoked a wartime power to rush deportations of alleged gang members, stripped thousands of foreign students of their visas and is quietly whittling away legal protections for torture survivors.

Both legal scholars and immigration advocates say that disregarding due process for immigrants could have serious consequences for the civil liberties of everyone else, and potentially, the country’s democracy.

So what exactly is due process?

The U.S. Constitution — the document that establishes the powers and limitations of government — first mentions due process in the Fifth Amendment: “No person shall … be deprived of life, liberty, or property, without due process of law.”

“What this simply means is that the government can’t impose harm on somebody unless there are fair procedures,” said Erwin Chemerinsky, dean of the School of Law at UC Berkeley.

“The government has tremendous power: the power to take away somebody’s property, their freedom, even their life,” he said — but due process of law dictates that “the government shouldn’t be able to do that without notice, hearings, a fair decision maker, appeals.”

Yet recent declarations by several White House officials and even Trump himself suggest that this administration believes some immigrants are not actually entitled to due process. If the government believes an individual is undocumented or part of a gang or terrorist organization, due process “is going to look different,” a top spokesperson for the Department of Homeland Security told NPR.

Who does due process actually protect?

In the federal government, it’s the Supreme Court that is tasked with interpreting the Constitution — not the White House.

And the Supreme Court has established multiple times that every person on U.S. soil — regardless of their immigration status — is entitled to due process. In the 1976 case, Mathews v. Diaz, the court declared that the Constitution’s Fifth Amendment protects the millions of non-citizens living in the U.S. “from deprivation of life, liberty, or property without due process of law.”

The Trump administration and due process

Despite these rulings from the Supreme Court, the White House insists on its own definition of due process. The case of Kilmar Abrego García — a Salvadoran citizen who lived in Maryland and was deported to a prison in El Salvador last April — shows what can happen when the administration’s interpretation is put into practice.

On March 15, Immigration and Customs Enforcement (ICE) agents pulled over Abrego García on his way home from work in Baltimore. At the time, Abrego García was living in the U.S. with a legal status protecting him from deportation, but when ICE officials detained him, they told his family that his “status had changed.”

Three days later, the administration placed Abrego García on a deportation flight to El Salvador — before a judge could actually hold a new hearing to review his immigration status. The Salvadoran government now has custody over Abrego García and has refused to return him to the U.S.

The White House, for its part, acknowledged that Abrego García’s deportation was an “administrative error,” but has since then insisted he was involved with the gang MS-13 — something his lawyers have repeatedly denied. Trump and Bukele were expected to discuss a range of bilateral issues, including the detention of Kilmar Armando Abrego Garcia, who has been held in a prison in El Salvador since March 15.

On social media, Deputy Chief of Staff Stephen Miller wrote that due process “guarantees the rights of a criminal defendant facing prosecution, not an illegal alien facing deportation.” But the Supreme Court has criticized the administration’s actions and stated that the government “must comply with its obligation to provide Abrego Garcia with ‘due process of law,’ including notice and an opportunity to be heard, in any future proceedings.”

When asked by NBC journalist Kristen Welker if he thought citizens and non-citizens alike deserve due process, Trump said, “I’m not a lawyer. I don’t know.” Welker then reminded the president that due process was enshrined by the Fifth Amendment, to which Trump replied, “It might say that, but if you’re talking about that, then we’d have to have a million or two million or three million trials.”

But having too many legal cases is not a good enough reason to ignore due process, said Matt Coles, professor of practice at UC Law San Francisco.

“The due process clause results in a lot of cases all the time,” he said. “Every single criminal case we have in the United States in a sense exists because we require due process.”

Habeas corpus: The White House’s latest focus

In the past few weeks, judges around the country have frozen many of the White House’s immigration plans, slowing down what Trump promised to be “the largest domestic deportation operation in American history.”

In response, the White House has become even more defiant.

In May, Miller told reporters that the administration is considering suspending habeas corpus: a legal right that allows individuals held by the government to challenge their detention in court. This term originally comes from the Latin phrase “you should have the body” because the detained person has to be brought to court so a court can review their situation — a form of due process.

Through habeas corpus, multiple individuals detained by ICE have been able to regain their freedom and avoid deportation after a court decided the federal government broke the law when arresting them. Without habeas corpus, the administration could move even faster with certain deportations.

But even as the administration eyes this new target, some officials have shown a lack of knowledge about what habeas corpus actually entails.

At a congressional hearing last month, Secretary of Homeland Security Kristi Noem stated that habeas corpus allows “the president has to be able to remove people from this country and suspend their rights.”

Democratic Senator Maggie Hassan of New Hampshire quickly pushed back and described habeas corpus as “the foundational right that separates free societies like America from police states like North Korea.”

“The writ of habeas corpus is available to anyone who’s been held by the government and who says that they’re being held illegally,” said UC Berkeley’s Chemerinsky, who added that the Constitution only allows one part of government to suspend habeas corpus: Congress — not the president — and only when “cases of rebellion or invasion the public safety may require it.”

The Trump administration, however, insists that there is a historical precedent for the president to freeze habeas corpus: In 1861, Abraham Lincoln suspended habeas corpus without permission from Congress during the Civil War. And although Lincoln argued that this only impacted suspected Confederate spies and sympathizers, the courts soon decided that the president’s actions were unconstitutional.

“Lincoln had no authority to suspend the writ of habeas corpus,” Chemerinsky said. “The fact that this was a constitutional violation back in the mid-19th century certainly doesn’t justify one now in the early 21st century.”

Due process: A final failsafe

In March, Trump signed a proclamation claiming that the gang Tren de Aragua — founded in a Venezuelan prison in 2011 — is cooperating with the regime of Nicolás Maduro to perpetrate “an invasion of and predatory incursion” into the U.S. Any Venezuelan immigrant the administration believes to be a TDA member, according to the proclamation, is “liable to be apprehended, restrained, secured, and removed” from the country.

Behind this aggressive deportation policy is the Alien Enemies Act of 1798 — a law that’s only been invoked before when the U.S. was at war with a foreign nation. On April 7, the Supreme Court ruled that the administration could move forward with its plan as long as suspected gang members were given “reasonable time” to challenge their deportations in court — due process.

But by the time the court announced its ruling, the administration had already deported hundreds of Venezuelan citizens without a hearing. Many of these individuals are now held in prisons in El Salvador, per an agreement between the U.S. and the government of Nayib Bukele.

A recent study from the Cato Institute, a libertarian think tank, found that 50 Venezuelan men deported to El Salvador’s maximum security CECOT prison came to the U.S. legally, with advanced government permission. “Because these men were denied due process, the public had no opportunity to obtain a real accounting of any evidence against them,” the Cato Institute report said.

New evidence also puts into question Trump’s claim that the Venezuelan government is collaborating with TDA. The Freedom of the Press Foundation obtained last month an internal memo from the administration’s own intelligence agencies that states the Maduro regime “probably does not have a policy of cooperating with TDA and is not directing TDA movement” into the U.S.

Government can still make mistakes, Chemerinsky said. “The only way we can check the government is to have a fair process.”

Rewriting — or eliminating completely due process — for one group could make everyone else vulnerable in the future, added Coles. “The guarantees of individual rights are only meaningful if the government doesn’t get to pick and choose who’s got the rights,” he said.