Supreme Court - Due Process Protects Removal of Aliens

WASHINGTON - April 7, 2025 - PRLog -- The U.S. Supreme Court has now said that aliens are entitled to the constitutional protections of due process; putting an end to arguments based upon outdated arguments of "it's only a privilege," notes public interest law professor John Banzhaf.

The majority said in Trump v. J.G.G. that:

"'It is well established that the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings. [citation]  So, the detainees are entitled to notice and opportunity to be heard 'appropriate to the nature of the case.' "

The argument that aliens are not entitled to due process because remaining in the U.S. is only a "privilege," is based upon two long outdated legal beliefs:
* That because being in the U.S. is only a privilege, aliens have no right to due process
* That due process always requires a formal hearing with evidence and many other procedural protections

Both would have been reasonably accurate descriptions of the law regarding due process up until about the middle of the 20th century but not today, says law professor John Banzhaf.

Those who rely upon the privileges vs rights distinction overlook which is widely known as the "Due Process Revolution"; so called because what occurred is nothing short of a revolution about how courts and legal scholars analyze cases in which parties claim and seek to enforce due process rights.

In other words, as law professors have taught for years, due process means only the process (procedural protections) which is due under the particular circumstances; ranging from a great deal in criminal cases to very little to briefly suspend a student from school.

Once this flexibility regarding procedural protections was recognized, the Supreme Court and lower courts jettisoned analysis based upon privileges vs rights, and instead simply relied on the words of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law."

Thus, since arresting and deporting an alien obviously involves depriving a person of liberty, due process applies, and he is entitled to advance notice and some opportunity to defend himself appropriate to the circumstances.

But whether the denial involves deportation, grants to universities, the ability of lawyers to appear in a court, etc., due process applies, says Banzhaf.

While being permitted to enter the U.S., obtain a federal grant, etc. may be seen as a privilege, once anything in the nature of liberty or property has been granted, it cannot be taken away (denied) without some kind of process, emphasizes the law professor.

http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf