The President’s men (and President’s women) are engaged in rounding up and deporting criminal aliens. And from many corners of the nation there is an echo of the term “Due Process.”  Though often referenced, there is seldom an attempt to explain what “Due Process” is.  One is left with the impression, however, that the government mustn’t do anything to anyone unless one takes a knee in abeyance before one of the 600 or so federal magistrates scattered here and there across the nation.  Not to do so, it would seem, would be to deprive the poor soul of his/her/it’s Due Process rights.  It’s got so no executive action can be taken, no policy changed, no new policy implemented without first submitting the matter to some low-level federal judge so he or she can put it under their own personal microscope fogged by their own personal prejudices.  “A hell of a way to run a railroad” as they used to say.

That aside, what is meant by these breathless references to the Due Process clause of the Constitution?

First the Basics:  There are two Due Process clauses.  One is in the Fifth Amendment (applies to the Federal Government) and one is in the Fourteenth Amendment (applies to State and local governments).  As always, the precise language is important.  

The Fifth Amendment reads, “No PERSON shall . . .be deprived of life, LIBERTY, or property, without due process of law.”  The Fourteenth Amendment reads “No STATE. . . shall deprive any PERSON of life, LIBERTY, or property, without due process of law.”  The fourteenth, passed after the Civil War, obviously had in mind restraining States after half of them had engaged in a bloody rebellion.  

Focusing more on the words, both amendments use the word “person.”  Take note that categories like “citizenship,” “resident,” or the like are not referenced.  Yep.  Even persons who are not U.S. citizens can claim due process protections under the Constitution.

Next, we can for purposes of this discussion, set aside concerns about “life” or “property” which have their own vast areas of law.  Which leaves the word “LIBERTY” to be analyzed.  First of all, the word “liberty” is what we lawyers call a “word of art” which encompasses more than the lay meaning of the term.  In interpreting the word, “liberty” the courts ask two basic questions. 1), what types of activities or interests are included in the word “liberty.” 2) what process is due before government can deprive a person of the “liberty” as so defined. 

Regarding Due Process under the Constitution the Supreme Court engages in is a two-step analysis. We do like fancy names.  In this instance, the nomenclature used in the two-step analysis is Procedural Due Process and Substantive Due Process.  

PROCEDURAL DUE PROCESS centers around the concept of Fairness.  When interfering with a person’s “liberty” interest does the government treat the person fairly?  This generally means did the government give the person NOTICE of what it was going to do and did the government give the person a CHANCE TO RESPOND.  

SUBSTANTIVE DUE PROCESS centers on the type or substance of the behavior that is included in the word “liberty.”  What activities (beyond the bill of rights) are protected liberties?

As to the word “liberty,” nowhere is the word defined in the Constitution.  Supreme Court justices have defined it in various cases in sometimes poetic but vague language (no real surprise there).  For some it means the activity seeking protection is “implicit in the concept of ordered liberty.”  Uh huh.  Other justices put is thus: “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”  Uh huh.   Many legal scholars will take the position that this language from the cases requires a historical approach. They will ask, have past governments or societies recognized the activity or interest as being protected under the Due Process clause?   Other justices consider societies understanding of the activity in light of modern-day culture.  The evolving standards of contemporary life, if you will.  Hence the unhappy phrase “living constitution.” 

And it can change.  Courts have found the following to be “liberties” protected by the Due Process clause:  Right to Privacy, Right to Abortion (later changed), Right to Marriage, Right to Interstate Travel, Choices about Living Arrangements, Choices about Consensual Private Sexual Activities, Right to Same-Sex Marriage, Liberty of Contract (later changed).  Other interests found NOT to be liberties protected by the Due process clause are Right to Die, Right to Physician-assisted suicide, Right to Public Education, Right to Public Assistance, the Right to Private Use of Illegal Narcotics.”

So, the SUBSTANTIVE DUE PROCESS question becomes, does a criminal alien have a “liberty” interest in resisting summary deportation? 

Once that question is answered, then, and only then, does the PROCEDURAL DUE PROCESS question arise.  What is fair notice?  Does it have to be in writing, in the right language and up to the wordsmith standards of some ACLU lawyer with an agenda? And how much time has to elapse after the notice before the person is shipped (or flown) out of the country?   

And does the right to be heard involve being afforded an endless evidentiary hearing before a federal judge?  Will an administrative judge do?  A tribunal officer?  

There are case precedents in the appellate courts both ways.  And no real final word or definitive case from the Supreme Court.  As applied to the summary deportation of Criminal Aliens, the scope and extent of the requirements of Due Process is making its way right now to the High Court.  

I don’t think they will be able to evade answering the ultimate question much longer.

For more writings by Phil Cline, visit philcline.com