In the whirlwind of President Trump’s second term, few topics have sparked as much heat as due process—or the fear it’s being sidelined. Social media buzzes with claims that undocumented immigrants, among others, shouldn’t get a fair shake in court, while others cry foul over constitutional overreach. So, let’s cut through the noise with a clear-eyed look at due process: what it is, who’s entitled to it, and whether it’s truly at risk. This isn’t about picking fights—it’s about grounding ourselves in facts, compassion, and a touch of curiosity to understand what’s at stake for everyone on U.S. soil.
What Is Due Process, Anyway?
Due process is the legal principle ensuring no one is deprived of life, liberty, or property without a fair process. It’s baked into the U.S. Constitution, appearing in the Fifth Amendment (“No person shall… be deprived of life, liberty, or property, without due process of law”) and reinforced in the Fourteenth Amendment, which extends this protection against state actions.¹ These clauses are the bedrock of fairness, demanding that the government justify its actions through transparent, lawful procedures—think hearings, trials, or the right to counsel.
But what does “fair” mean? The Supreme Court has long wrestled with this, balancing individual rights against government efficiency. In Landon v. Plasencia (1982), the Court clarified that even non-residents, like a permanent resident detained at the border, deserve procedural protections, though the extent varies by context.² Due process isn’t a one-size-fits-all; it’s a spectrum, from full-blown trials to administrative hearings, depending on the stakes.
Who Gets It? Spoiler: Everyone Here Does
Here’s where things get spicy. The Constitution doesn’t say “citizens” when it talks about due process—it says “persons.” That’s huge. In Yick Wo v. Hopkins (1886), the Supreme Court struck down a discriminatory ordinance, declaring that the Fourteenth Amendment’s protections apply to “all persons within the territorial jurisdiction, without regard to… nationality.”³ Fast forward to Zadvydas v. Davis (2001), where the Court reaffirmed that undocumented immigrants can’t be detained indefinitely without a hearing, emphasizing that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”⁴
This isn’t just legal jargon—it’s a principle rooted in fairness. As Yale Law professor Cristina Rodriguez puts it, “Most of the provisions of the Constitution apply on the basis of personhood and jurisdiction in the United States.”⁵ Undocumented immigrants, asylum seekers, even tourists—anyone physically on U.S. soil—gets due process. The catch? The extent of that process can differ. At the border, for instance, protections are thinner due to the government’s interest in border control, but once you’re inside, the Constitution kicks in full force.
Trump’s Second Term: Testing the Limits
Since January 2025, Trump’s administration has pushed boundaries on due process, particularly for immigrants. Executive orders issued on Day 1, like “Protecting the American People Against Invasion,” aim to expand expedited removals and limit asylum access, often bypassing traditional hearings.⁶ The administration’s use of the Alien Enemies Act of 1798—a wartime law allowing deportations with minimal process—has raised alarms. Federal Judge James Boasberg halted some deportations under this law, questioning its peacetime application, yet reports suggest the administration ignored his order, deporting Venezuelans to El Salvador.⁷ This defiance prompted a unanimous Supreme Court ruling in April 2025 upholding habeas corpus, a key due process pillar, though it allowed continued use of the wartime law with caveats.⁸
The rhetoric is equally bold. Border Czar Tom Homan’s dismissal of due process concerns—“I don’t care what the judges think”—signals a broader challenge to judicial oversight.⁹ Such moves don’t just target immigrants; they test the rule of law itself. As The Washington Post warned, “By denying immigrants due process, the Trump administration launches an assault on the rule of law.”¹⁰
Safeguards: Are They Enough?
The good news? The U.S. system has checks. Federal courts, including the Supreme Court, have consistently upheld due process for noncitizens, as seen in Yick Wo and Zadvydas. The ACLU and other advocates are quick to litigate, with 22 states suing over Trump’s birthright citizenship order alone.¹¹ Habeas corpus, a constitutional right to challenge detention, remains a bulwark, as the Supreme Court’s recent ruling shows.¹²
But there are real risks. Expedited removals, which skip full hearings, are expanding nationwide, potentially deporting people without a chance to argue their case.¹³ The registration requirement for undocumented immigrants, effective April 11, 2025, carries threats of detention or prosecution for non-compliance, chilling access to legal recourse.¹⁴ Overwhelmed immigration courts, with backlogs stretching years, already strain due process. Add in public sentiment—fueled by rhetoric linking immigrants to crime—and the pressure to shortcut fairness grows.
Why This Matters to Everyone
Here’s the kicker: eroding due process for one group weakens it for all. If the government can deport someone without a hearing today, what stops it from targeting dissenters or citizens misidentified as threats tomorrow? The ACLU warns, “When the government has the power to deny legal rights and due process to one vulnerable group, everyone’s rights are at risk.”¹⁵ History backs this up—look at the Japanese internment during WWII, enabled by the same Alien Enemies Act Trump’s team is dusting off.¹⁶
Yet, there’s a flip side. Some argue that robust due process for undocumented immigrants clogs the system, delaying deportations and straining resources. This view, echoed by Trump’s base, sees expedited removals as pragmatic, prioritizing national security. But pragmatism doesn’t trump the Constitution, and as constitutional scholar Carl Tobias notes, “Congressional legislation and the Constitution mandate due process… federal courts would probably find [attempts to bypass it] violates the Constitution.”¹⁷
A Path Forward: Curiosity Over Confrontation
So, where do we go from here? First, let’s keep asking questions. Why is due process framed as a luxury rather than a right? How do we balance efficiency with fairness? Data shows detained immigrants with legal counsel are far more likely to win their cases, suggesting access to lawyers could unclog courts while upholding rights.¹⁸ A bipartisan Senate bill in 2024 even proposed codifying counsel for some asylum seekers—a rare point of agreement worth exploring.¹⁹
This isn’t about “us vs. them.” It’s about a system that works for everyone—citizens, immigrants, and those caught in between. Due process isn’t perfect, but it’s a promise that no one gets steamrolled without a chance to be heard. Let’s hold that line, not because it’s progressive or conservative, but because it’s human.
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