Outside the Beltway

Donald Trump Once Again Goes To War Against The Rule Of Law

Donald Trump continues to demonstrate that he has nothing but utter contempt for the Rule of Law. At some point, he will either be called to account for this or our nation's institutions will suffer as a result.

Doug Mataconis · Tuesday, June 26, 2018 · 22 comments

In his latest attack on immigration and the rule of law, President Trump is calling for depriving immigrants seeking to enter the United States access to legal counsel or courts of any kind before deportation:

President Trump unleashed an aggressive attack Sunday on unauthorized immigrants and the judicial system that handles them, saying that those who cross into the United States illegally should be sent back immediately without due process or an appearance before a judge.

“We cannot allow all of these people to invade our Country,” Mr. Trump tweeted while on the way to his golf course in Virginia. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”

It was another twist in a head-spinning series of developments on immigration since the administration announced a “zero tolerance” policy two months ago, leading to the separation of children from parents who cross the border illegally and an outcry from Democrats and many Republicans.

Mr. Trump signed an executive order to end the separations last week, but the sudden shifts have led to confusion along the border about how children and parents will be reunited and to turmoil in Congress as the House prepares to vote on a sweeping immigration bill this week.

Still, the president, who has always dug his heels in when criticized, has not backed back down from his hard-line talk, even amid a national outcry over a detainment policy that has resulted in the separation of more than 2,300 children from their families.

He has instead gone on the offensive, complaining to aides about why he could not just create an overarching executive order to solve the problem, according to two people familiar with the deliberations. Aides have had to explain to the president why a comprehensive immigration overhaul is beyond the reach of his executive powers.

And privately, the president has groused that he should not have signed the order undoing separations.

“Our system is a mockery to good immigration policy and Law and Order,” Mr. Trump tweeted Sunday, adding, “Our Immigration policy, laughed at all over the world, is very unfair to all of those people who have gone through the system legally and are waiting on line for years! Immigration must be based on merit.”

But Mr. Trump’s call to ignore due process faced both constitutional questions and dissension from Republicans in Congress, some of whom have insisted that the number of judges be increased so migrant families can have their cases heard more quickly. Federal immigration courts faced a backlog of more than 700,000 cases in May, and cases can take months or years to be heard.

Senator Ted Cruz, Republican of Texas, has proposed doubling the number of judges to roughly 750, while Senator Ron Johnson, Republican of Wisconsin and chairman of the Senate Homeland Security Committee, said Sunday on CNN’s “State of the Union” that he believes an additional 225 judges are needed. He noted that only 74 of the current immigration judges are serving at the border.

“We need to increase that,” Mr. Johnson said. “The Trump administration is going to try and come up with another 15,000 beds for family units. But none of this is easy.”

(…)

Mr. Trump’s call to end due process is not a total surprise — he has alluded to taking similar measures for weeks. While in Las Vegas on Saturday, Mr. Trump told supporters that he thought the immigration system needed fewer judges. Mr. Trump also suggested last week that he opposed adding judges because many of them could be corrupt.

He has long been a critic of immigration judges, saying they were not effective in stopping the flow of people coming into the country, sometimes using incorrect numbers to make his point.

“We have thousands of judges. Do you think other countries have judges?” Mr. Trump said during a round-table discussion in May. “We give them, like, trials. That’s the good news. The bad news is, they never show up for the trial. O.K.?”

There are actually fewer than 400 judges dedicated to such work, according to the website PolitiFact.

Here are President Trump’s tweets from Sunday:

We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents…

— Donald J. Trump (@realDonaldTrump) June 24, 2018

….Our Immigration policy, laughed at all over the world, is very unfair to all of those people who have gone through the system legally and are waiting on line for years! Immigration must be based on merit – we need people who will help to Make America Great Again!

— Donald J. Trump (@realDonaldTrump) June 24, 2018

Yesterday, White House Press Secretary Sarah Huckabee Sanders responded to questions about the President’s comments by suggesting that “due process” doesn’t mean you have to appear before a Judge:

The White House on Monday disputed reports that President Trump had called for those who enter the country illegally to lose their due process rights.

“Just because you don’t see a judge doesn’t mean you don’t receive due process,” press secretary Sarah Huckabee Sanders said during Monday’s press briefing.

Her remarks came in response to criticism of a tweet from Trump in which he said people who illegally cross the border should be removed “with no Judges or Court Cases.

“The president would like to see us stop people from illegally entering the country at all,” Sanders said. “The president would like us to secure the borders and have a very legal and easy immigration process so people can come here the right way.”

In addition to suggesting illegal immigrants be denied access to a court, the president has ridiculed efforts to hire additional immigration judges to adjudicate asylum claims and immigration cases.

His recent comments drew criticism from immigration advocates and lawmakers who argue that his tweets were alluding to unconstitutional practices.

Sanders said Congress will have to enact immigration reform for any meaningful change to occur.

Here’s the video of Sanders’ response:

NEW: On Pres. Trump's tweets about removing undocumented immigrants without interaction with U.S. court system, Press Sec. Sanders tells @jonkarl: "Just because you don't see a judge doesn't mean you aren't receiving due process." https://t.co/zLRwyCR9G1 pic.twitter.com/mki1eWiGTY

— ABC News (@ABC) June 25, 2018

Legally speaking, President Trump’s arguments are utter nonsense and, in an of themselves, yet another example of the contempt that this President has shown for the Rule of Law in general and for immigrants in particular. Simply looking at the text of the Constitution itself, specifically the language of the Fifth and Fourteenth Amendments, it is fairly clear that the rights and protections that document applies are not limited to citizens or people in the country legally, and this is has been repeatedly stated in Supreme Court case law dating back more than a century. In Yick Wo v. Hopkins 118 U.S. 356 (1886), for example, the Supreme Court struck down a San Francisco ordinance that was clearly aimed at discriminating against Chinese immigrants, who were frequent targets of discrimination in the late 19th Century. The Court, in a ruling that came just two decades after the ratification of the Fourteenth Amendment, that the Equal Protection Clause of that Amendment applied regardless of whether the person(s) raising the claim were citizens or immigrants.  Ten years later, in Wong Wing v. United States 163 U.S. 228 (1896), the Court held that a Defendant facing charges of illegal entry into the United States was entitled to the protections of the Fifth and Sixth Amendments regardless of their immigration status. While this last case did not deal directly with the protections provided by the Fourteenth Amendment, it did make clear that immigration status was not relevant in determining whether the rights guaranteed by the Constitution applied in a particular case.

With respect to undocumented immigrants, the Supreme Court made the applicability of the Equal Protection and Due Process clauses clear in a case called Plyler v. Doe 457 U.S. 202 (1982) which dealt with a Texas law seeking to deny public education to the children who were undocumented immigrants to the United States and purporting to authorize school systems the authority to charge the families of such children tuition if they tried to enroll their children in school. In striking down the law, the Supreme Court made clear that the Fourteenth Amendment’s Due Process and Equal Protection Clauses apply to immigrants regardless of their legal status, thereby holding that the Texas statute was unconstitutional. The thirty-six years since Plyler have seen that principle restated repeatedly by liberal and conservative Judges and Justices alike, and has resulted in the creation of the Immigration Court system that President Trump attacked over the weekend and apparently wishes to eliminate. In  Zadvydas v. Davis 533 U.S, 678 (2001), for example, the Court applied the Due Process Clause to invalidate a Justice Department policy that essentially allowed indefinite detention of immigrants subject to detention proceedings regardless of the fact that existing law at the time gave the government 90 days to process a case while holding an undocumented immigrant. Most recently, in Clark v. Martinez 543 U.S. 371 (2005), the Court restated the ruling in Zadvydas and held that it also applied to provide Due Process rights to immigrants who might be ineligible for entry altogether due to their health status,  criminal history, alleged involvement in activities such as substance trafficking, prostitution/human trafficking, money laundering, and even terrorist activity. In addition to this, case law, Federal Law, and international treaties to which the United States is a signatory require due process and other protections for those claiming asylum. The President, however, is calling for undoing more than 130 years of existing law as he continues his unhinged, xenophobic, nativist attack on immigrants, especially immigrants from Mexico and Central America.

This obvious contempt for the Rule of Law is nothing new for this President, of course. Both during the campaign and after he became President, so this latest attack does not come as much of a surprise. Although that covers only roughly three years of history, it is replete with examples of how this President has sought to act more like one of the authoritarian rulers he clearly admires than the President of a representative democratic republic.

Trump has absolutely no inclination to refrain from attacking the legitimacy of the legal system. The most prominent example of that contempt, of course, has been his consistent attempts to undermine the investigations by Special Counsel Robert Mueller and Congress, an effort that his fellow Republicans are only too happy to help him with for the most part. In addition to the investigation, Trump has also attacked the Rule of Law when it impacts him personally. In the wake of the numerous occasions on which Federal Courts around the country have put Administration policies such as the Muslim Travel Ban, the effort to ban transgender Americans from openly serving in the military, his efforts to undo the DACA programs, and his attacks on the Tenth Amendment rights of the states by punishing so-called “sanctuary cities,” Trump has repeatedly attacked the courts and the court system.

We’ve also seen other examples of this during the time since he became President. For example, Trump has tweeted his support for the death penalty for Sayfullo Saipov, the suspect in the Halloween attack in New York City last October, saying on Twitter that he “SHOULD GET DEATH PENALTY.” Trump also commented on the sentence handed down in the case of Bowe Bergdahl, who received a Dishonorable Discharge and reduction in rank to Private after pleading guilty to walking away from his post in Afghanistan in 2009 before being captured by the Taliban. In the past, of course, Trump had referred to Bergdahl as a “dirty, rotten traitor,” and as a “traitor” who should be executed for his crimes while a candidate for President, and said he stood by those comments shortly after Bergdahl pled guilty. In each of these incidents and others, Trump has shown his contempt for courts, for Judges, and for the legal system generally.

There was a preview of all of this, of course, during the campaign two years ago when he attacked the Federal District Court Judge who was presiding over the fraud lawsuits against him and his now defunct business venture “Trump University.” In those attacks, Trump referred to the Judge, Gonzalo Curiel of the U.S. District Court for the Southern District of California as a “Mexican”notwithstanding the fact that he was born in Indiana, contended that his ‘Mexican heritage’ created some sort of conflict of interest, and claimed that Curiel was “biased” and “unfair.”  In retrospect, it’s clear that Trump’s attacks were related to Judge Curiel’s decision to authorize the release of documents related to the ongoing lawsuit, documents that clearly show the extent to which Trump’s so-called “University” was little more than a fraudulent marketing scheme. In reality, though, an examination of Judge Curiel’s rulings in the case demonstrated no evidence of the bias Trump alleged.

Back when Trump was still just a candidate, I made note of his obvious contempt for the Rule of Law:

Based both on his rhetoric and his actions, Donald Trump gives the impression of being a President who sees himself as  unconstrained by the law or the other branches of Government in the tradition of Jackson or Richard Nixon, both of whom set off Constitutional crises from which it took the nation years to recover. As in the case of those two previous Presidents, he would likely justify his actions by appealing to the same populist, anti-establishment rhetoric that has fueled his campaign from the start. The difference is that, this time, he would be President of the United States and his rhetoric would be tied to action that could do real damage to the Rule of Law and to the Constitution. Furthermore, unlike any of his predecessors, Trump seems to have command over a mob of supporters that would rush to his defense even when he was clearly wrong. This is why the arguments that equate Trump to the European far right, and even to fascists and authoritarians of the past, are completely on the mark. Either Donald Trump is lying to his supporters or he is the kind of man who cannot be trusted with political power even in a Constitutionally limited democratic republic. Under the circumstances, it would be foolish for anyone to believe that this is all a big con on Trump’s part, and much safer to assume that he quite simply cannot be trusted with political power.

Those comments remain as true today as they were in 2016. As we’ve pointed out here on OTB many, many times over the course of the past seventeen months, Donald Trump’s have been violating and flouting political norms as a matter of course ever since he took office. These latest comments are just another example of that. However, given the fact that the President is, in effect, the chief enforcer of the laws in the country the fact that the office is now occupied by a many that clearly has contempt for laws and norms that don’t work to his advantage puts the nation in a situation that is getting more concerning by the day. At some point, he’s going to go too far and that’s the point when we’ll learn whether the President or the Rule of Law will win this battle.