I am incredibly worried about #Trumpenfuhrer and his power. If we hope to fix our immigration mess, it has to start with recognizing that there is such a thing as "Substantive Due Process" and a reaffirmation of basic Human Rights and Inalienable Rights theory into the law.
Affirming Substantive Due Process
Flores and Reno, did believe in substantive due process, and they worked out a settlement Agreement in 1997 after "over a decade of litigation responding to the U.S. government’s detention policy of children. The agreement set national standards regarding the detention, release, and treatment of all children in immigration detention and underscores the principle of family unity." [Settlement]
The Settlement required that:
- “Juveniles be released from custody without unnecessary delay, and in order of preference to the following: a parent, legal guardian, adult relative, individual specifically designated by the parent, a child welfare licensed program, or, alternatively when family reunification is not possible, an adult seeking custody deemed appropriate by the responsible government agency.”
- “Where they cannot be released because of significant public safety or flight risk concerns, juveniles must be held in the least restrictive setting appropriate to age and special needs, generally, in a nonsecure facility licensed by a child welfare entity and separated from unrelated adults and delinquent offenders.”
Source: https://supportkind.org/resources/flores-settlement-myth-v-fact/
This was a wonderful ruling by a wonderful and under-appreciated Attorney General, Janet Reno and her Justice Department. But there are features here that shoud worry any civil libertarian. She worked out this agreement in 1997. But the litigants had gone to the Supreme Court in 1993! And they had ruled against Flores and the Juveniles!
Reno Versus Flores
In the 1993 Reno V. Flores case. The Judges ruled in favor of the Government's case against the litigant Flores who was representing young children who'd been detained. They scoffed at the very notion of "Substantive Due Process" and in favor of "Procedural Due Process", which is a legal fiction that allows courts to deny people due process when the letter of the law is fulfilled.
Denial of Substantive Due Process
The Court ruled in Favor of INS in Reno Versus Flores! The conservative majority claimed:
“The regulation does not deprive respondents of "substantive due process."” [Reno V. Flores]
Because the Majority Scoffed that a substantive right existed!
“The substantive right asserted by respondents is properly described as the right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a private custodian rather than of a government-operated or government-selected child-care institution. That novel claim cannot be considered "'so rooted in the traditions and conscience of our people as to be ranked as fundamental.'” [Reno V. Flores]
Considering our country's history of outrages against minority children, a historical claim “rooted in the traditions and conscience” of our country is indeed a stretch. This country has a tradition of denying substantive due process, and even rights that might legitimately be asserted under the 9th or 10th amendments!
A "Policy Judgement"
SCOTUS, led by its conservative Judges, in 1993, thus apparently ruled that immigrant children do not have a substantive right to an individual hearing, to trial by a court, that this is a policy Judgement. This should be disturbing to anyone interested in child welfare and the rights of immigrants, since most of us are relying on the Flores Settlement and forgetting what SCOTUS said in 1993...
“It is therefore sufficient that the regulation is rationally connected to the government's interest in preserving and promoting the welfare of detained juveniles, and is not punitive since it is not excessive in relation to that valid purpose. Nor does each unaccompanied juvenile have a substantive right to an individualized hearing on whether private placement would be in his "best interests." Governmental custody must meet minimum standards, as the consent decree indicates it does here, but the decision to exceed those standards is a policy judgment, not a constitutional imperative. Any remaining constitutional doubts are eliminated by the fact that almost all respondents are aliens suspected of being deportable, a class that can be detained, and over which Congress has granted the Attorney General broad discretion regarding detention.” [Reno V. Flores]
SCOTUS declared that the Government only need meet “minimum,” and somewhat arbitrary, standards of "due process" in this decision. We should not pin our hopes on the Flores Settlement.
Reason for Grave Concern
Masha Gessen warns in her "Rules for Survival" that:
- Appearances of Normality are a Trap &
- The establishment can't save Us
- Masha
The 1993 SCOTUS decision, in the hands of corrupt judges like the late Scalia or the current cabal of Alito, Roberts, Kennedy, Gorsuch and Thomas; that the Settlement could be overturned on the grounds that the Flores Settlement “decision to exceed those standards is a policy judgment, not a constitutional imperative.” Assuming that the courts understand Substantive Due Process in this world of Con artists and authoritarianism, may be the kind of tragic "trap" that Gessen warns us about! This is a fight where we can only count on the Supreme Court if we appoint judges who take the Constitution and the Bill of Rights Seriously. These "Conservative" (I consider them con artists and pirates) judges have no problem with "mock trials" as long as they meet the "minimum standards" of procedural due process. This is a court that ruled in the Herrera Versus Collins case (also 1993) that actual innocence was not enough cause to stay the hand of the executioner!
Be very concerned!
General Discussion
In an article in Slate; Trump's Family Separation Policy is Unconstitutional, the authors, cite three cases to make their points:
- 2001 Zadvydas v. Davis,
- 1971’s Stanley v. Illinois and
- 1982’s Santosky v. Kramer.
- slate article: https://slate.com/news-and-politics/2018/06/trumps-family-separation-policy-is-unconstitutional-its-time-for-the-courts-to-award-damages.html
They don't mention Reno Versus Flores. The Zadvydas case is important because it was written by Justice Stephen Breyer in a 5/4 opinion:
“"the statute, read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States” and “does not permit indefinite detention.”
Breyer has been in the minority in subsequent decision. But he ruled that:
“indefinite detention of aliens”... “would raise serious constitutional concerns” [and therefore] “we construe the statute to contain an implicit 'reasonable time' limitation, the application of which is subject to federal court review,”
Whether or not those constitutional concerns are taken seriously depends on whether the judges accept the notion of "substantial due process", which in turn hinges on respecting rights like "equal protection of the laws" and whether the basic rights defined in the Constitution, are inalienable and substantial or not. Those who don't admit "substantial due process" deprecate those rights.
The Zadvydas case applied to someone held in detention and ordered deported, who the United States was unable to deport because the country that he was to be deported to, Cambodia at the time, was unavailable to be deported to. He wasn't convicted of a crime, and the proper time to remove him had passed so the court ruled he had:
- A. the right to habeas corpus.
- B. he must be released if they can't move him in the reasonable removal period.
The courts ruled that:
“Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause. Government detention violates the Clause unless it is ordered in a criminal proceeding with adequate procedural safeguards or a special justification outweighs the individual's liberty interest.”
Special justification loophole
The "special justification loophole" was why detainees from our conflict with radical Islamicists could be held in Guantanamo. It is also why their permanent presence in Guantanamo absent a conviction is unconstitutional. However, this decision demands a moderate to liberal court.
Stanley Vs Illinois and Santosky Versus Kramer
Stanley Versus Illinois held that parents have parental rights that cannot be infringed without due process; and that therefore parents have due process rights to habeas corpus hearings and that the state does not have the right to presume parents are unfit without a hearing. Obviously, the US is taking detained immigrant children permanently, which violates the due process of immigrants. The constitution doesn't only apply to citizens except in the case of rights such as the vote. It applies to all residents. Even people we might hate. Even Fathers. The Santosky Versus Kramer case (1981) affirmed that even less than ideal parents deserve due process.
Basic rights and the courts duty to protect them
People have basic rights and the courts have a duty to protect them. However, courts are run by people appointed for life and who get to interpret what those rights are and what they mean. The doctrine of substantive due process allows the courts to overrule the executive and protect the rights of people facing unjust administrative or court proceedings -- like the immigration policies being pushed by Trump.
What Substantive Rights are Violated
The Slate Article explains what substantive due process rights are being infringed by the Trump Administration.
Deeming People as Criminals Administratively
Trump's new policy of detaining, holding and maybe one day trying people for what are misdemeanors (first border crossing) or minor felonies (crossing a second time illegally) and that if ever adjudicated would be decided with "time served" and deportation orders, intentionally violates the principle of separation of powers (law enforcement cannot be judge jury and executioner in the same person).
“There is a fundamental problem with the Trump administration labeling people “criminals” before any sort of adjudication. Separation of powers forbids law enforcement from making determinations of guilt. Therefore, any attempt to punish people for a crime prior to adjudication violates the separation-of-powers doctrine and due process.”
Holding people for excessive time without a speedy trial, bail hearing also violates the 6th, 7th and 8th amendments. Substantive due process is defined in those amendments in this case. Treating a misdemeanor as if it were a felony is draconian and "cruel" punishment. Family separation is cruel punishment and administrative punishment. Much of what is done in our detention systems involves administrative punishments that are worse than the crime the person was jailed for. Detained children here in Virginia have been subject to Guantanamo type tortures for the infraction of crying too much or being "unruly." Most of them were not even detained for breaking any law, but for simply being undocumented aliens whose parents had committed the misdemeanor of crossing the border in an unauthorized fashion or the non-crime of applying for asylum.
The Trump administration is treating misdemeanors as felonies, detaining people for the legal act of asking for asylum, and punishing people administratively and unconstitutionally outside the courts. Which even Alito, Roberts, & Gorsuch, ought to decry. But we'll see!
The slate article is really good reading and part of a series.
Further Reading
- https://supreme.justia.com/cases/federal/us/507/292/case.html
- 2001 Zadvydas v. Davis:
- https://www.oyez.org/cases/2000/99-7791
- Stanley Vs Illinois: https://supreme.justia.com/cases/federal/us/405/645/case.html
- https://supreme.justia.com/cases/federal/us/533/678/
- https://supreme.justia.com/cases/federal/us/455/745/case.html
- https://supportkind.org/resources/flores-settlement-myth-v-fact/
- Masha Gessen: http://holtesthoughts.blogspot.com/2017/03/rules-for-survival-masha-gessen.html
- http://holtesthoughts.blogspot.com/2015/10/innocence-is-no-reason-to-stay-noose.html
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