Judges Warn on Deportations: Americans Could be Next

I suspect many in 1930's Germany shrugged off what was being done to Jews, gypsies, and gays by the Nazi regime believing it could/would never happen to them and chose to ignore the deprivation of rights of others before their eyes.  In time many came to regret their approval or at least acquiescence of the due process denied to those targeted because as the Nazi regime gained in power, all Germans became subject to potential seizure and worse. Compliancy and a belief "it can't happen to me" turned into a nightmare.  Fast forward to America in 2025 and we see undocumented immigrants being seized on the streets without judicial warrants and any form of legitimate hearing.  Worse yet, after being seized by Gestapo-like ICE agents, these individuals are made to disappear with families having no idea where their loved ones are and with no means to contact them.  Sadly, far to many Americans are shrugging it all off, much as German counterparts in 1930's Germany did, and no doubt thinking it can't happen to me.  Thankfully, judges appointed by both Democrat and Republican presidents - including Trump during his first regime - are sounding the alarm and issuing orders seeking to stop the total lack of due process, something promised to all persons in America by the U.S Constitution. Also, it must be noted, the Felon received votes from slightly more than  one-third of American voters (1/3 voted for Harris and 1/3 stayed home), so he has no mandate. A piece in Politico looks at the warning being issued by responsible jurists:

A fundamental promise by America’s founders — that no one should be punished by the state without a fair hearing — is under threat, a growing chorus of federal judges say.

That concept of “due process under law,” borrowed from the Magna Carta and enshrined in the Bill of Rights, is most clearly imperiled for the immigrants President Donald Trump intends to summarily deport, they say, but U.S. citizens should be wary, too.

Across the country, judges appointed by presidents of both parties — including Trump himself — are escalating warnings about what they see as an erosion of due process caused by the Trump administration’s mass deportation campaign. What started with a focus on people Trump has deemed “terrorists” and “gang members” — despite their fierce denials — could easily expand to other groups, including Americans, these judges warn.

“When the courts say due process is important, we’re not unhinged, we’re not radicals,” U.S. District Judge Ana Reyes, a Washington, D.C.-based appointee of President Joe Biden, said at a recent hearing. “We are literally trying to enforce a process embodied in probably the most significant document with respect to peoples’ rights against tyrannical government oppression. That’s what we’re doing here. Okay?”

It’s a fight that judges are increasingly casting as existential, rooted in the 5th Amendment’s guarantee that “no person shall … be deprived of life, liberty or property, without due process of law.” The word “person,” courts have noted, makes no distinction between citizens or noncitizens. The Supreme Court has long held that this fundamental promise extends to immigrants in deportation proceedings. In a 1993 opinion, Justice Antonin Scalia called that principle “well-established.”

The daily skirmishing between the White House and judges has obscured a slow-moving, nearly unanimous crescendo: If the courts don’t protect the rights of the most vulnerable, everyone is at risk.

“If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?” wondered J. Harvie Wilkinson, a Ronald Reagan appointee to the Richmond-based 4th Circuit Court of Appeals. Wilkinson described an “incipient crisis” but also an opportunity to rally around the rule of law.

The Trump administration has resisted these odes to process as overwrought and unrealistic. Trump and his aides say voters elected him to cast out immigrants in the country illegally. That electoral mandate deserves virtually unlimited weight, they say.

Trump’s close adviser Stephen Miller has railed daily against what he’s called a “judicial coup” that has largely centered around rulings upholding due process rights of immigrants. Miller has scoffed at the notion that people Trump claims are terrorists — even if they deny it — must be allowed to contest their deportations, saying they only have the right to be deported. Miller suggested Friday that the White House was “actively looking at” suspending habeas corpus, the right of due process to challenge a person’s detention by the government.

FBI Director Kash Patel told senators Thursday he didn’t know whether hundreds of Venezuelans Trump deported to El Salvador in March required due process.

“What you’re saying is that every single one of the illegals that was sent down to El Salvador is supposed to be given due process,” Patel said in an exchange with Sen. Jeff Merkley (D-Ore.).

“That’s what the Constitution says,” Merkley replied.

The Supreme Court has three times emphasized the right of due process for people queued up for deportation by the Trump administration, brushing back Trump’s efforts to hastily expel immigrants under the Alien Enemies Act, a rarely invoked 1798 law meant to speed deportations during wartime. The high court took the unusual step of issuing a 1 a.m. ruling last month halting a new round of Alien Enemies Act deportations until further notice.

“The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order,” Wilkinson wrote last month. “This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

Judges appointed by Trump have raised similar concerns.

In Maryland, a Trump-appointed judge scolded the administration for arguing against an effort to bring back another man who was sent to El Salvador in violation of a court-ordered settlement. The Justice Department argued that, if he were returned to the U.S., he’d surely be re-deported.

“Process is important. We don’t skip to the end and say, ‘We all know how this is going to end up,’” U.S. District Judge Stephanie Gallagher said.

And U.S. District Judge Terry Doughty, a Trump appointee based in Louisiana, described a “strong suspicion that the Government just deported a U.S. citizen with no meaningful process” in the case of a two-year-old sent to Honduras.

“Of course, due process makes it harder for the government to do what it wants,” said Erwin Chemerinsky, dean of the Berkeley School of Law. “That’s the whole point — to make sure that the government is acting in accord with the law.”

“When someone’s most basic right of freedom is taken away, that person is entitled to at least some minimal process; otherwise, we all are at risk to be detained — and perhaps deported — because someone in the government thinks we are not supposed to be here,” Vilardo wrote.

The Trump administration had argued that the court had no role in weighing in on its purported procedural violations, in part because the outcome was likely to be Ceesay’s deportation anyway.

“The government’s suggestion … is downright frightening,” Vilardo added. “Procedure is not mere puffery, a gesture that is irrelevant so long as the result is correct.”

Across the country, judges grappling with due process concerns returned repeatedly to one central premise. If immigrants can be summarily labeled gang members or terrorists and deported, delivered to any country without warning, detained without a hearing or stripped of their ability to attend college in the United States, it could happen to U.S. citizens, too.

“If the government contends that it has the ability to take someone it thinks is a noncitizen off the street without any process whatsoever — without any guarantee even that the person is who the government claims he is — then what is to stop the government from detaining someone who really is a citizen, even perhaps a sitting judge?” Vilardo wrote in the Ceesay case.

Wilkinson’s colleague on the 4th Circuit, Obama appointee Stephanie Thacker, agreed.

“If due process is of no moment,” she wrote, “what is stopping the Government from removing and refusing to return a lawful permanent resident or even a natural born citizen?”