Recently, Rep. Pramila Jayapal, D-Wash., challenged the validity of deportations of illegal aliens who have not been convicted of additional crimes. She declared in a Nov. 18 House Judiciary Committee markup meeting that “It has never been more important for people to have their day in court,” referring to illegal immigrants. She has also re-introduced legislation that would repeal mandatory detention for illegal aliens and establish a presumption of release, rendering it much more difficult for the Trump administration to detain and deport illegal aliens. Leftists like Jayapal flatly deny the fact that illegal entry into the U.S. is a crime.
This is just the latest in a string of leftist politicians and pundits attacking Trump’s deportations of illegal aliens as a violation of “due process.” The frequent invocation of “due process” by media voices and politicians seems to grant the left legitimacy and the moral high ground as they rail against Trump’s immigration agenda, which nevertheless has broad popular support from voters.
To dismantle these kinds of claims, we simply need to be more precise about terms, definitions, and standards. What is due process? What is deportation? What is a legal injury? One of the challenges in treating these questions is the complexity of prevailing legal procedures, details of specific bills, and court precedents. These combined complexities often obscure the fundamental questions. I want to consider the fundamentals surrounding deportations and “due process” from the standpoint of first principles of the American Constitution and natural rights republicanism.
Defining Due Process
The phrase “due process of law” appears in the Fifth Amendment, which guarantees that the federal government may not deprive any person of “life, liberty, or property, without due process of law.” In popular parlance, most Americans think of “due process” in connection with procedural rights mentioned in the U.S. Constitution and individual state constitutions — the rights of citizens to be secure from unreasonable searches and seizures, seizures of property without just compensation, double jeopardy, and self-incrimination, as well as the rights to a speedy and public trial by jury, the right to know the witnesses and evidence against you and to have legal counsel, the right of habeas corpus, and so on. These are the constitutional protections which are (in theory) supposed to protect people from having their lives, liberty, or property curtailed arbitrarily.
The U.S. Constitution does use the language of “persons” who shall not be deprived of these rights, as opposed to the language merely of “citizens.” Citizenship entails certain rights — certain “privileges and immunities” — exclusively held by citizens and not by just any person from anywhere. For example, voting rights are exclusively the rights of citizens. However, since the law aims at impartial protection, the Constitution and American legal tradition also protect some general rights of “persons,” as in, “No person” shall be deprived of life, liberty, or property without due process of the law. Being deprived of life, liberty, or property are forms of legal penalties and punishments, and one can only lawfully merit legal penalties by committing crimes and being duly convicted thereof. The language here is “person” because foreign citizens or resident or illegal aliens are indeed capable of committing crimes or being accused of crimes in the U.S. The blessing of “equal protection of the laws” and “due process of the law” are for all persons within the jurisdiction of the U.S., which is why it would still be a crime against the law for anyone to murder non-citizens in the U.S.
Defining Deportation and Legal Injury
However, we have to also get clear about the nature of deportation and legal injury. What are the deportations which President Donald Trump is carrying out? DHS, ICE, and Border Patrol are arresting and detaining aliens who are illegally present in the U.S. (such as those who have entered illegally, overstayed a visa, had a visa or other legal status revoked, or been legally denaturalized) and then removing them from the U.S. to their home countries or to a willing third country. The problem for the leftist advocates of alleged “due process” is that there should not be any legal injury in being removed from the United States if you are not a citizen of the United States. For example, if someone is a native citizen of Somalia, Venezuela, Mexico, or any other foreign country, how can there be a legal injury in removing such a person from the U.S. (where he does not belong and is only present in violation of the laws) to his own country or to another country willing to accept him?
Since Congress has provided a legal process for removal of illegal aliens, involving administrative hearings in immigration court, the only way there could be a legal injury for an illegal alien would be if that legal process is not followed correctly, or if somehow someone was deported who had a legal right to be here in the U.S. The details of this process are beyond the scope of my survey here. The key point is that the leftists who invoke “due process” will still be upset when illegal aliens are deported even if the Trump administration follows all the legal procedures properly. I would also argue that the legal process should be revised and expedited to make it as quick and easy as possible for the Trump administration to deport illegal aliens without endless legal hurdles and obstacles.
Considering this from a standpoint of first principles of the American social compact, what legal injury occurs to individual illegal aliens lawfully removed by deportation? What can they claim is rightfully theirs that has been taken from them? Contrary to the left’s insistence, America is not a global refugee camp. No one has a right to be in the U.S. except under the conditions of American immigration and naturalization laws, which have been laid down by our legal representatives in Congress. If some have violated those laws to be here, they are not owed any continued residence here.
There is no injury to life, for illegal aliens are not being killed. There is no injury to liberty, unless you believe that every one of the 8 billion people on the globe has the inherent right to go anywhere else on earth, including into our country, in violation of the laws of distinct nations. If detaining illegal aliens is an injury to their “liberty,” then no country could ever enforce any of its laws.
What of property? Some might claim that, due to the American government’s abject failure to enforce immigration law for decades, many immigrants have acquired property in the U.S. The full considerations of this are beyond the scope of this article, but, in general, we don’t tend to treat property as legally sacrosanct if it has been acquired in violation of the laws (e.g., fraud schemes, theft, etc.). Also, it is deeply ironic and hypocritical to make this criticism when the federal government is literally offering cash and plane tickets to illegal aliens who will self-deport.
Contrary to the leftist perception, ICE is not rounding up illegal immigrants Gestapo-style to detain them at concentration camps; the detention centers are for holding illegal aliens before they can be deported as fast as is legally and practically possible. What should the Trump administration do instead? Let every one of the millions of illegal aliens go freely wherever they want all over the U.S. and then politely ask them to voluntarily deport themselves? The reason that the self-deportation strategy has been very effective this year is that it is married with a slight financial incentive to immigrants who self-deport and, more importantly, it is backed up by the threat that ICE will find, arrest, detain, and ultimately deport illegal aliens who don’t go of their own accord. This carrot-and-stick approach is brilliant, pragmatic, and efficient. The estimated 2 million deportations so far are not nearly enough, but this is the most aggressive deportation policy we have ever witnessed from a recent American presidential administration.
A final key distinction to make is that determining whether someone is or is not an illegal alien does not require a judicial criminal trial and the accompanying due process rights, such as habeas corpus. Habeas corpus is a right of citizens to know why they are being detained and held by the law, and to be released unless they are a public threat or there are strong reasons to suggest they will flee the law. However, determining an alien’s status and issuing a removal order is an ultimately administrative function, not a judicial one. Immigration judges are actually part of the Executive Office of Immigration Review within the Department Of Justice — part of the executive department, not the judicial. If someone is determined by an immigration judge to be present in the U.S. illegally and therefore eligible for deportation, no legal injury has been done to him. Although they have imposed fines, the Trump administration is not imprisoning or otherwise punishing illegal immigrants for breaking immigration law; it is simply sending them out of the country to their home countries or to receptive third countries. Habeas corpus, judicial hearings with Article III federal judges, legal representation, and jury trials have nothing to do with this.
The legal process due to illegal aliens is to determine if they are indeed illegally present in the U.S. (actually quite a simple determination). If that determination is made, they should then be removed from the U.S. It is not hard to prove U.S. citizenship if one is legally a U.S. citizen, so we need not worry that Trump’s DHS is confusing classes of persons. Illegal aliens are being given the legal process due to them, which is administrative hearings and deportations. Vice President J.D. Vance defended this articulately earlier this year in April in an X post.
The Left’s Hypocrisy
The whole notion that the left even cares about “due process” is absurd, given how easily they disregard it for American citizens. Take, for example, the uncomfortable irony that in her dissent in SEC v. Jarkesy (2024), Justice Sonia Sotomayor (one of the most representative jurists of the left) was completely fine with in-house tribunals of administrative agencies imposing civil penalties on American citizens without jury trial by peers.
Or consider the manifold violations of due process that were imposed by leftist prosecutors and judges who targeted Trump and his supporters under the aegis of the Biden administration. Or the problematic fact that the majority of criminal cases in America never go to trial — let alone a jury trial — and that there are many complications and problems threatening the impartiality and validity of jury trials where they do take place. The evidence strains belief in the naïve supposition that the jury trial as a bulwark of republican liberty is alive and well in America.
Summary
Democrats protest for “due process” because they want the millions of illegal aliens here, and they want to obstruct Trump’s successful deportation policy. As White House Deputy Chief of Staff Stephen Miller also put it recently on X, “Democrats have spent the last year demanding that every invader have a multi-year trial prior to removal, unlimited access to appeals, endless defenses against removal, and automatic habeas release from ICE detention. The only process invaders are due is deportation.” The left may be upset by this because they don’t like the outcome, but justice and law are not on their side.
The executive has the constitutional authority and duty to execute federal immigration law and to protect American citizens. The fact that federal immigration law has gone woefully unenforced for decades does not change that.
Samuel Kimzey is a doctoral student at Hillsdale College and a 2025 Publius Fellow at the Claremont Institute. He holds a B.A. in History and Christian Studies from Bluefield College and an M.A. in Humanities from the University of Dallas, and previously taught at Valley Classical School in Blacksburg, Virginia.
