It’s no mystery why Trump has spent the last two weeks banging away 24/7 about the border. He knows that his fans are stoked by fear of immigrants, and that fear is a great motivator at election time. He figures that if he can use the issue to gin up Trumpkin turnout, and if minorities and millennials skip the midterm congressional balloting (as they usually do), then he’s got a great shot at beating the so-called blue wave.
His latest move came yesterday, apparently during his drive to the golf course, when he tweeted: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” If we ignore the erroneously capitalized words that are more fit for a ransom note, and if we ignore the illiterate phrasing (“bring them back from where they came”), we discover that he’s trashing due process and the rule of law, exposing (yet again) his ignorance of the Constitution and the Supreme Court.
We know that his fans don’t care about facts and history and the nuanced niceties of constitutional law in a democratic nation. We know that fear in the gut can easily trump the intellect. Nevertheless, at the risk of being labeled an “elitist” by those who debase knowledge, I will now endeavor to share a few salient details from the realm of truth:
It is illegal and unconstitutional to summarily kick out undocumented immigrants “with no Judges or Court Cases.”
Multiple Supreme Court rulings, dating back to the early 1950s, have made that perfectly clear. The Constitution’s Fifth Amendment guarantees “due process of law,” the Fourteenth Amendment says the states cannot deprive “any person of life, liberty, or property, without due process of law,” and the high court has repeatedly ruled that those amendments cover non-citizens as well as citizens.
Nobody on Trump’s staff has put those rulings in a coloring book for his easy perusal. It would make no difference if they did, because there’s no way to simplify the high court’s language for third-grade comprehension. I found the rulings in the constitutional law textbook that I’ve kept since college, and they’re pretty straightforward.
In a 1953 case, Shaughnessy v. Mezei, the high court ruled that “aliens who have passed through our gates, even illegally, may be expelled only after proceedings confirming to traditional standards of fairness encompassed in due process of law.” To buttress that opinion, the justices cited earlier high court rulings in 1903 and 1950. And there’s case law expanding the due process rights for immigrants dating back to 1886.
In a 1982 case, Plyler v. Doe, the high court said that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident immigrants whose entry into the United States was lawful and resident immigrants whose entry was unlawful.”
And in a 2001 case, Zadvydas v. David, the court’s majority (3 of the 5 were Republican appointees) ruled that “the due process clause applies to all persons within the United States, including aliens, whether their presence here is lawful or unlawful.”
That’s how a co-equal branch of government has consistently ruled. It’s the judiciary’s job to interpret the meaning of the Founders’ document. If Trump had even minimal fealty to the rule of law and the oath he swore on Inauguration Day to “preserve, protect and defend the Constitution,” he would not be tweeting lawless demagoguery in the service of his authoritarian aspirations.
Laurence Tribe, the renowned Harvard constitutional scholar (although, for Trump fans, the word “Harvard” is surely a deal-breaker) didn’t mince words yesterday: “Trump’s assertion of unreviewable power to serve as prosecutor, judge, and jury of every asylum seeker’s claim of right to be here has no basis in our Constitution or laws. It is a power grab one would expect of a fascist dictator, beyond even George III.”
But since Trump’s sole fealty is to himself, his latest move makes perfect sense. He’s betting that immigrant bashing (with the rule of law as collateral damage) will mobilize older white voters – the Republican base that typically shows up for midterm congressional elections. He’s also betting that young, racially diverse voters, who detest him by landslide margins, won’t bother to show up in significant numbers. And he may be right, because they typically ignore the midterms; at least one Democratic pollster sees “a very real risk” that they’ll go AWOL again. Even with the rule of law at stake.
And, rest assured, it is.