It's Not About Kilmar Abrego Garcia. It's About the Constitution

On social media, my conservative friends are bashing Democrats as “pro-terrorist” and “pro-gang” for expressing concern about the removal of Kilmar Abrego Garcia. Leading Republican clearly view this as a huge political opportunity and are making similar claims. Even some Democrats are hoping that the conversation changes to economic issues such as the tariffs and inflation. And other advocates are headed in the other direction and making the case that Abrego Garcia is good family man that deserves to remain in the United States.

They are all missing the point. The current controversy is really not about Kilmar Abrego Garcia. It is about whether we will allow the Trump Administration to brazenly violate the Due Process Clause of the Fifth Amendment to the U.S. Constitution. Abrego Garcia may indeed be a gang member. He may not. I don’t know. That is not the point—the point is that there was a court order requiring that he not be deported to El Salvador, and before that court order is changed Abrego Garcia is owed meaningful due process. The Due Process Clause is not a mere suggestion. It is a constitutional requirement, and the courts have long held that it applies even to undocumented immigrants in the United States.

The fact that so many of us are so energized by the Abrego Garcia case doesn’t mean we admire him or are “pro-gang.” It means only that we want the Trump Administration to follow the law. In fact, the most significant constitutional law cases I studied in law school often involved less than stellar human beings. Ernesto Miranda, the petitioner in Miranda v. Arizona, the case that gave rise to Miranda rights we see on television, had an extensive criminal record. While I don’t like to speak ill of a former client of my law firm, Clarence Earl Gideon, the petitioner in Gideon v. Wainwright, the case that established the right to counsel in criminal cases, also had a criminal record and a less than admirable family life. One one of the most significant First Amendment free speech cases, National Socialist Party of America v. Village of Skokie involved the Nazi Party’s right to march in a predominantly Jewish community.

The lawyers for Miranda and Gideon were not “pro-criminal.” And the counsel for the Nazi party was not pro-Nazi—in fact he was Jewish. (He wrote an interesting post on the ACLU website by the way about how he got involved in the case). They did not take on these cases because they liked and admired their client. They took on these cases because of the importance of the Constitutional principles involved.

Due process has very deep roots in Anglo-American law. It first appears in Clause 39 of the Magna Carta (from 1215): "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

Due Process is viewed as so central to the U.S. Constitutional framework that it appears twice—in both the Fifth and Fourteenth Amendments.

I get the frustration expressed by many about due process requirements. It would certainly make mass deportation much easier to do if the government didn’t have to bother with hearings. And liberals and progressives have expressed similar frustration when due process requirements delayed or otherwise interfered with making corporations accountable for misdeeds. Due process is expensive. It takes time. It requires lawyers and judges and cost money.

But our Nation’s founders insisted on due process for very good reasons and this insistence arose out of their own harsh experience. Even honest governments make mistakes. We are seeing that already in the growing numbers of U.S. citizens that have been erroneously caught up in the mass deportation effort. And sadly, even our government officials are sometimes less than honest. There is nothing more dangerous that an unchecked government official with an axe to grind or a zealous devotion to a cause. This is true regardless of which party is in power. Due process can cure the mistakes and check the unscrupulous government official.

So do I support Abrego Garcia? No. I really don’t. I don’t know enough to make any judgements. But I do support the right of every person in the United States—citizen and non-citizen alike—to have du process. In this way, I am following the lead of Judge Wilkinson of the 4th Circuit—a staunch conservative judge appointed by Ronald Reagan—who had this to say in the appellate decision in the Abrego Garcia case:

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the government prove “by a preponderance of evidence” that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?