The Constitution Is Apparently Inconvenient for the U.S. Government 

This blog was never intended to focus so heavily on migration, but recent events relating to the Rule of Law in the U.S. have brought the plight of specific migrants into the spotlight. I had intended to post some thoughts on the Canadian election, but I may save those thoughts for another day.  

A lot has happened in recent days, which is always the case under the current U.S. Regime. The onslaught of so many seemingly unprecedented developments can sometimes make it difficult to parse out some of the particulars. I focus here on one specific development, which of course has a larger context. 

There has been considerable criticism of the U.S. rendering of migrants to El Salvador, and other immigration actions, which I discussed here, here, and here. The response to the U.S. Government bypassing due process, among other human-rights issues, has been so strong that Joe Rogan, known as a supporter of U.S. President Donald Trump (“Trump”), cautioned that this was a “dangerous” thing for the Government to do, saying, “[w]e gotta be careful that we don't become monsters while we're fighting monsters.” 

Trump has pushed back against criticisms about a lack of due process as the Government renders people to El Salvador, complaining about the practical difficulty of providing it. Some of those comments were made in a disturbing interview he did with ABC News. When asked about the lack of due process for people being sent to El Salvador and elsewhere, Trump said: 

  

"[w]e're getting them out, and I hope we get cooperation from the courts because you know, we have thousands of people that are ready to go out, and you can't have a trial for all of these people. 

  

Much can be said about the characterizations Trump used to describe the people being rendered, but it was his comments about due process that sparked the most discussion. When asked about due process, Trump has repeatedly reverted to saying “trials” are not possible for everyone. He posted a similar sentiment on his Truth Social account, saying it would not be possible to provide “trials” for those the U.S. seeks to “deport,” because there are so many, and that it would “take, without exaggeration, 200 years … such a thing is not possible to do.”  

The issue, though, is not whether “full trials,” whatever he means by that, are required. The issue is whether due process, which is constitutionally required, has been provided. When asked about his “methods” in an interview with ABC News, Trump replied, “[w]ell they seem to work.” 

ABC News released a transcript from its interview with Trump. Their reporter, Terry Moran, repeatedly confronted Trump about the lack of due process being provided. In this transcript, Trump never quite answered the question, but he did, at one point, revert to his assertion of the impracticality of giving “trials” to the “21 million people” the U.S. would seek to deport. There are multiple layers of problems with Trump’s comments. 

First, due process is not optional. There may be dispute over the specifics of what due process is required in a given matter, to be resolved by the courts, but there is no dispute over whether due process itself is required when the U.S. Government seeks to remove people from the country. The ends do not justify the means, and Trump’s assertion that his means “work” does not mean they are constitutional. Expediency never trumps the Constitution. 

Second, as I argued in an earlier post, the term or more general description of these removals as “deportation” is misleading in some of these cases, as sending people to a third country for indefinite detention, involuntary servitude, and possible torture is not, in fact a deportation. As a federal judge wrote this week when releasing Mohsen Mahdawi, “[i]mmigration detention cannot be motivated by a punitive purpose.” Immigration detention is intended to be pending deportation, and, while there has rightfully been a focus on the complete lack of due process in these cases, it cannot be lost that no degree of due process would permit a U.S. President to ship people overseas, especially to a third country, for indefinite detention, involuntary servitude, and possible torture.  

Third, the rambling response that Trump gave in that interview is indicative of a Rule of Law problem in itself. He said, more than once, that his Government intends to “deport” 21 million people. If that is true, that is an incomprehensible number. It could be, of course, that he is exaggerating or not being truthful, and that is a problem in itself when the assertions of the President cannot be believed. In a later interview, quoted below, Trump referred to two or three million people when complaining that it is not practical to give all the people he is removing “trials.” One would expect a bit more precision from the U.S. President as to how many people he is targeting for such a serious repercussion. It is also a problem when the President makes public statements that it is not practical to give “trials” to people he is illegally removing from the country, because there are just too many of them.  

This post began with a dramatic image of a group of immigration detainees in Texas, who used their bodies to spell out “SOS” when a news drone passed over. The code “SOS” began as a Morse Code message used by ships at sea in extreme distress. It has subsequently been associated with phrases such as “Save Our Ship” or “Save Our Souls.” It was famously used by the radio operators on the Titanic as the ship was sinking, alternated with an older distress signal.  

In a scenario in which these prisoners face the potential of indefinite detention, involuntary servitude, and mistreatment in an overseas prison, with no ability to defend themselves in any type of proceeding before being sent there, their dramatic gesture of spelling “SOS” with their bodies seems especially poignant. Deprived of the voice the Constitution guarantees them, their desperate gesture represents an appeal for help, not just for them as individuals, but for foundational constitutional norms. Trump’s suggestion that constitutionally mandated due process is too inconvenient cannot stand. If he seeks to remove people from the country, he is bound by constitutional protections in doing so, regardless of perceived practical difficulty. 

I link here to the entire set of answers Trump gave in his interview with ABC News, presented via transcript. It is a disturbing read, in part because of what he says about due process, and in part because of the rambling, often incoherent, nature of his responses.  

The Erosion Continues, As the U.S. President Expresses Ambiguity About Whether the Constitution Binds Him 

Earlier today, U.S. media widely reported Trump’s comments in a “Meet the Press” interview. A few weeks ago, U.S. Secretary of State Marco Rubio (“Rubio”) was asked about whether every person in the U.S. was entitled to due process, and he replied “[y]es of course.” Trump was asked in the “Meet the Press” interview if he agreed with Rubio, Trump said: “I don’t know. I’m not, I’m not a lawyer. I don’t know …”  

When the reporter reminded Trump of the language of the Fifth Amendment to the U.S. Constitution, which makes it clear, as has the Supreme Court, that every person in the U.S. is entitled to due process, Trump again complained about the practical obstacles due process would represent for his plans. He said: 

 

“I don’t know. It seems — it might say that, but if you’re talking about that, then we’d have to have a million or 2 million or 3 million trials … We have thousands of people that are — some murderers and some drug dealers and some of the worst people on Earth.” 

“I was elected to get them the hell out of here, and the courts are holding me from doing it …” 

The reporter asked him whether he was still required to uphold the U.S. Constitution in his role as President. Trump replied, “I don’t know … I have to respond by saying, again, I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said.” 

The Supreme Court, of course, has already said that people forcibly removed from the U.S. are entitled to due process. It has said so repeatedly and has said so relating to Trump’s current actions. There is no confusion as to whether the U.S. President is bound by the Constitution. He is. He knows he is. 

When Trump was sworn in to this second term, he took an oath to “… to the best of my Ability, preserve, protect and defend the Constitution of the United States,” as stated in Article II, Section 1 of the U.S. Constitution. It was widely reported that his hand was not on the Bible as he repeated the oath. That, of course, is legally irrelevant, as supported by Article II and Article VI of the Constitution, but it does present a vivid image of a President who swore an oath to the Constitution and later falsely stated that he is unsure as to whether the Constitution binds him. 

Perhaps some of Trump’s “confusion” comes from a sense derived elsewhere that the law somehow does not apply to him, an impression that has been given to much of the U.S. public, and which presents obvious concerns for the Rule of Law. Trump was elected President mere months after being convicted of 34 felony counts, for which he served no time. He was indicted for other actions, including a widely televised incident in which he admonished his followers to go to the U.S. Capitol to disrupt certification of the 2020 election, which resulted in a violent attack on the Capitol. Those indictments against Trump were dropped when he was elected President, and he pardoned many of the people convicted in the Capitol attack. This over-arching scenario not only makes Trump’s complaints about “criminals” in the U.S. seem rather ironic, especially when he himself had the benefit of due process regarding his own criminal conviction and indictments, but it also leaves a larger sense of impunity for Trump for his actions. That sense has been further reinforced by the Supreme Court’s decision, which expanded the notion of what is protected under presidential immunity, and which also called into question the viability of some of the indictments before the election. 

In addition to that sense of being above the law for Trump himself, there is also the history of impunity for past U.S. actions regarding torture and illegal detentions, such as those at Guantanamo Bay, on which the current Government has obviously based some of the more egregious current actions. This mix creates an alarming Rule of Law problem. See my prior post for a more detailed argument that impunity for past atrocities by the U.S. Government opened the door for its current human-rights violations. 

Impunity does that. Not only does it suggest that there will be no repercussions for past transgressions, but it also lays the foundation for future harms that may be as bad if not worse. Trump has arguably been told that the law does not apply to him, through the various scenarios described above that involve him directly and that suggest he will enjoy expansive immunity in his role as President. He has also seen via history that, even where the U.S. Government commits extreme human-rights abuses, impunity will follow. 

That is a dangerous basis for any presidency. It, indeed, suggests a serious erosion of the Rule of Law in the U.S., as this mix has been met with a President who is all too willing to disregard foundational constitutional norms, and who has the audacity to express “confusion” over whether he is actually bound by the Constitution. While, thus far, the courts have held strong against the Government’s most egregious recent actions (unlike Congress), the Rule of Law in the U.S. is on the shakiest of ground. 

“SOS” indeed.