Responding to a Reader: Here's How Illegals Ended Up with 'Due Process' Rights
Recently a reader asked The Western Journal to explain the legal basis for illegal aliens having the “right to due process,” saying he couldn’t see any rights in the Constitution that specifically apply to illegals.
Reader, you are 100 percent right that the Constitution and Bill of Rights were meant to enshrine and protect the rights of American citizens. But over time constitutional rights were expanded again and again to apply to more people, but rarely did those expansions come from Congress.
The power behind the expansion was, as you might guess, the Supreme Court. Four key decisions led us to the point we’re at (and a handful of others contributed but not very much). While some make more sense than others, the idea that non-citizens enjoy virtually every single benefit and protection that American citizens enjoy raises the awkward question of “why bother becoming a citizen?” And under the scheme created by SCOTUS, there presently isn’t a very compelling answer to that question.
There were no significant questions about issuing constitutional protections to foreigners or illegals (which weren’t a really well defined group anyway at that time) for roughly the first century of our republic.
In 1886, ninety-eight years after the adoption of the Constitution and Bill of Rights, SCOTUS dealt with the case of Yick Wo v. Hopkins.
Wo (we’re assuming his name order was anglicized) was a Chinese immigrant in San Francisco who had lived in the U.S. for over 20 years. At that time the city required a permit to run a laundry out of a wood building. Wo applied but was denied, just as the city denied similar permits to nearly all Chinese applicants.
Wo sued and wound up before the Supreme Court, which struck down the permit ordinance as discriminatory, violating the Fourteenth Amendment’s Equal Protection Clause. The Court was careful to note that the Fourteenth Amendment’s protections extended to all “persons” within the U.S., not just American citizens.
Wo v Hopkins was the first link in the chain of jurisprudence that got us to where we are today. The next came a decade later in 1896 with Wong Wing v United States.
Wing was an illegal Chinese immigrant. He had been sentenced to prison and hard labor under the Chinese Exclusion Act, and he was sentenced only by a commissioner’s ruling, not a judicial trial.
SCOTUS ruled that non-citizens, even illegals, can’t be subject to punishment without trial. That guarantees that the Fifth and Sixth Amendments’ due process and procedural protections extend, again, to “all persons” in the jurisdiction of the U.S., not just U.S. citizens.
Seven years after Wing, in 1903, Yamataya v Fisher made its way to the Supreme Court. Yamataya was a Japanese immigrant facing deportation after having entered the U.S. legally. She sued, arguing that she should have the same procedural protections as were awarded the illegals in Wing. After all, if they were illegals and got protection, why shouldn’t she, a legal immigrant, be protected, as well?
The ruling on Yamataya gets to the core of your question about present day deportations. The Court ruled that non-citizens who have entered the country can’t be deported without being heard, even if they entered illegally, because that would be a violation of due process under the Fifth Amendment.
Less than 120 years after the adoption of the Constitution, the Court had extended constitutional protections to everyone on U.S. soil. And if that’s what the people wanted, that would be fine. But no law was passed to accomplish this. The citizens’ rights were devalued by being granted even to non-citizen and illegals, and it had been done by judicial fiat instead of the will of the people.
For roughly the next 80 years there weren’t any cases that significantly impacted how constitutional rights were applied to non-citizens. Then in 1982 Plyler v Doe hit, and it was a watershed.
Texas had passed a law denying public education funding for children of illegals. This time a class action suit was filed, claiming the law was discriminatory. In a 5-4 decision, SCOTUS struck down the Texas law and held that children of illegals are entitled to equal protection. The Court essentially fell back on Wing and Yamataya and added for good measure that children shouldn’t be punished for their parents immigration status. It’s not clear why applying the law would be punishment, but then that’s the inscrutable SCOTUS for you.
Three more decisions followed over the next 40 years – I.N.S. v Lopze-Mendoza (1984), Zadvydas v Davis (2001), and Sessions v Dimaya (2018). Each depended on the previous rulings that granted constitutional rights to “all persons.” All three further concretized specific nuances of different amendments or principles as rights for non-citizens, while I.N.S. and Zadvydas did so for illegals specifically.
Even without those last three cases, the game was over as of Yamataya. Ruling that even illegals can’t be deported without due process planted the seeds for an absolute nightmare 118 years later when Joe Biden took office.
And while the justices ruled incorrectly — in my opinion — we can grant them some mercy because in that day and age they simply couldn’t envision a scenario where 13 million people would be able to physically cross a border in four years’ time (after all, the entire U.S. population at that time was barely 80 million), much less that they would cross illegally, and even less still that the government would create the crisis by refusing to enforce the law.
Had the justices seen that coming, I have to think they would have tried to tailor their rulings better. After all, with true foresight they would have realized that their ruling would create a situation that was impossible to resolve using any conventional methods.
For instance, during Trump’s first 100 days, he mandated that ICE should arrest 1,000 people per day. Let’s go with that and pretend that due process isn’t required for illegals. We’ll also assume that an arrest equals a deportation. At the rate of 1,000 arrests/deportations of illegals per day, it would still take 35 years to expel all of Biden’s illegals. I would like to think that any justice before, say, Earl Warren would have realized any ruling that led to that result had to be questionable.
It would also be hard to blame those justices if they threw our 35 years example back in our faces, saying, “Our ruling’s the problem? You’re the ones who elected someone who literally allowed the country to be invaded. We could issue the most perfect rulings in the history of man and a leader like you guys put in office would wreck them all.”
And any justice who argued that would, let’s face it, be exactly right.
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