Readers may have noticed that we’ve written much recently about the breakdown of due process in the U.S.
What is perhaps most surprising about this fundamental change in America is the degree to which conservatives have been silent on the issue. Due process, after all, should be a bedrock conservative principle.
We all know that governments have immense power. Governments can strip you of your freedom, your property, and even your life. They can impose unpopular, unjustified, or unconstitutional laws.
Government decision-makers can be arbitrary at times, or motivated by poor judgment or improper inducements. Legislative bodies can be swept up in the heat of the political moment and make rash decisions. The president or federal agencies can abuse their executive powers.
Due process is one of the only remedies for such abuses. By giving the courts authority to scrutinize the actions of the other branches and determine whether they are consistent with the laws and the Constitution, our founders sought to protect the people against a government that wielded its authority with too heavy a hand.
For those who value limited government, due process should be sacred, since it is, ultimately, the only thing that can guarantee government for the people.
Yet due process is undermined when we have a president who calls for denying access to the courts for asylum seekers in the U.S.
“When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” President Trump tweeted recently.
It sounds simple, but the questions are many. Since most of those currently entering the U.S. at our southern border are coming from violent countries in Central America, simply tossing them back into Mexico is not a legal option.
Further, America has made commitments, along with the rest of the civilized world, to provide asylum to refugees who legitimately fear violence in their homelands. There is little doubt but that many of the asylum seekers at our southern border legitimately face such fears. You’re more likely to experience violent death today in El Salvador or Guatemala than in war-torn Syria. Due process is the means through which we determine whether asylum seekers have legitimate claims and that process requires investigation, presentation of evidence, and the protection of legal rights. And yes, even those here without legal status have rights. Due process is how America lives up to its commitments to the world and to the ideals upon which our country was founded.
Immigration isn’t the only issue. Back in March, President Trump said the government should be able to take a person’s guns away if someone (it’s not clear who) decides that the person poses a risk. Such a seizure would normally require due process, but Trump complained that getting a court order takes too long. “Just take the guns first and then go to court,” Trump said.
Clearly, the president has little understanding of how due process actually works, nor respect for its underlying principle of limiting the power of government.
Due process is not just confined to the courts. Since 1946, with the enactment of the Administrative Procedures Act, the executive branch of government has established procedures to ensure a quasi-judicial approach to decision-making. That process includes transparency, public involvement, fact-finding, and rights to appeal.
We see due process undermined when Congress and the President pass legislation that eliminates the rights of some members of the public to appeal government decisions. Legal challenges to government decisions, such as the PolyMet land exchange, should be decided in court, not Congress, a body that’s hardly known for thoughtful examination of the facts.
We see due process undermined when partisans replace professionals in our federal agencies and use their sudden power to arbitrarily reverse decisions previously enacted through an established process. The May 2 decision by the Trump Interior Department to reinstate cancelled federal mineral leases on the dubious claim by a longtime functionary of the Koch brothers that the leases were cancelled based on “legal error,” reeks of abuse of power. Whether the courts will correct that abuse remains to be seen.
This shouldn’t be a partisan issue. Indeed, Minnesota’s two DFL U.S. senators were complicit in eliminating the appeals of the PolyMet land exchange, so the problem isn’t entirely limited to Trump.
And due process has faced threats before. Civil forfeiture has been widely abused in the U.S. for decades, a practice that effectively grants law enforcement agencies a license to steal from citizens, whether or not those citizens have been convicted of a crime or have done anything wrong at all.
Opposition to civil forfeiture across the political spectrum had prompted the Obama administration to take steps to sharply limit the practice. Unfortunately, Trump Attorney General Jeff Sessions has sought to reinstate this flagrant abuse.
Unfortunately, we have too many people in government today who view due process as an inconvenience or burden that should be short-changed if not eliminated. And those who claim to champion limited government can’t sit idly by. Those who would take away due process are not just undermining the rights of Americans. They are undermining the very idea of America.