Sarlacc Summary: Due Process

Welcome back to the Sarlacc Summary! The past few weeks were especially difficult to bear witness to as a Venezuelan immigrant. Reading that people born in Venezuela were deported from the United States to El Salvador as a judge was deciding whether or not the government could even do this in the first place took a toll on me. However, this did bring the concept of Due Process to the forefront of my mind. Venezuelans getting deported on a whim, students with visas being shuffled around detention centers for protesting a genocide, and a push to punish lawyers suing the administration on multiple issues is a blatant attack on one of the pillars of this country’s legal framework: Due Process. Although Due Process is a relatively boring topic, surely not as sexy as a “constitutional crisis,” it is something that separates the US legal system from authoritarian governments. With that in mind, I decided to make this month’s Sarlacc Summary focus on Due Process, what it means, and why it matters.

Starting with what Due Process even is, it is a concept referenced in two separate amendments to the US Constitution. Starting with the federal government, the Fifth Amendment specifically states that no one shall be “deprived of life, liberty, or property without due process of law.” In the Fourteenth Amendment, the same phrase is used and directed at the States in the Union. Between both amendments, whether you’re charged by a state or federal government, you are entitled to a process before any action is actually taken. This process brings any action against individuals into a transparent arena, each process creates a paper trail, and each trail can be found and requested by anybody as a member of a public space. More importantly, because Due Process applies to the government’s ability to level a charge against an individual, this right extends beyond nationality. If a state or federal agency is bringing an action against you, citizen or not, you are entitled to a process. One final distinction here is that Due Process is not a silver bullet to stopping governments from taking actions against individuals. Those who have broken laws and are found guilty still face the consequences of their actions. Due Process is simply the guarantee that you’ll get that day in court to plead your case and acts as a check and balance against a government attacking its citizens and using the law as its weapon of choice.

Understanding the buffer against outright tyranny that is Due Process, we now shift our attention to the assaults on Due Process that Trump’s administration has acted out. Knowing that Due Process extends to all people regardless of immigration status, the sudden deportation of Venezuelan immigrants is a blatant violation of that principle. A judge has since ruled that all those deported have the right to challenge the government’s stance that they are members of the gang Tren de Aragua. However, that ruling is effectively just a sheet of paper until the government actually enforces it. To our collective horror, we have seen the executive branch continually argue that it is simply powerless to bring back any of the people it has sent off to El Salvador. However, the courts are not believing the President and his representatives, with even the Supreme Court stepping in to grind this kidnapping operation to a halt until the accused can have their day in court.

It is often said that sunlight is the best disinfectant, and that is most likely the reason that the administration does not want any of these immigrants to be before a judge. Once the truth is revealed, it’s harder to paint immigrants as the convenient scapegoat needed to justify whatever policy the administration wants to push next. However, there are things that we can do as citizens and with elected officials that represent us in the government. Sen. Van Hollen is one example, as he has actually gone to El Salvador and seen Abrego Garcia and kept his story circulating in the news. Although Mr. Garcia is the most damning example, he is only the tip of the iceberg of a class of people who have been accused with no process, and suddenly find themselves in a foreign prison with no recourse. As more stories of people captured and released move through the internet, we reach our second alternative to protecting Due Process: People Power. If the government can disappear people without Due Process, people are simply not giving the government an opportunity to begin its disappearance process. In Nashville, when ICE came for a man, the community rallied together to form a human chain and physically stand between ICE and the person. Without Due Process, ICE agents are unable to actually secure a judicial warrant. You would have to actually prove that somebody is a threat to get a Judge to order your removal. So behind all the bluster of vans, vests, and badges, there is nothing they can actually do if somebody simply refuses to comply or makes it impossible to actually get to the person they’re trying to disappear. This is why activists like the Tennessee Immigrant & Refugee Rights Coalition have reminded folks that they do not have to open their door for ICE agents, and why the physical blockade actually worked. Calling your legislator and organizing your community are not sexy quick fixes, but legislators are slowing coming around to the idea of doing their job, and knowing your rights is a simple trick that is frustrating government officials as high up as Tom Homan and the President himself.

If Due Process wasn’t such a foundational part of our country, the Abrego Garcia story wouldn’t still be discussed by the media. More importantly, as the administration faces more organized resistance from communities and now the courts, their lack of Due Process for individuals is becoming a bigger and bigger weakness to exploit. Although this is probably one of the more boring topics to discuss in a written form, it is so foundational to what makes the United States a distinct country that it gives everybody from all walks of life something to rally around. The founding fathers literally started a revolution in order to build a system that let people state their case and actually be heard. Eroding that on any level, erodes the very foundation this country was built on—and everybody in the political and legal world knows this.