The Assault on Due Process: How Expedited Removal Threatens American Constitutional Principles

The Legal Challenge and Policy Context

The United States Court of Appeals for the D.C. Circuit recently heard arguments challenging one of the most concerning immigration policies of the Trump administration: the expansion of expedited removal procedures to immigrants within the interior of the country. This policy, which allows for the deportation of individuals without an appearance before an immigration judge if they cannot prove continuous presence in the United States for more than two years, represents a significant departure from long-standing immigration enforcement practices.

For decades, expedited removal has been primarily applied to migrants apprehended at the U.S. border, allowing for swift deportation without judicial review. However, in January, the Trump administration dramatically expanded this policy’s scope to include immigrants anywhere within the country’s interior. This expansion forms a central pillar of the administration’s mass deportation campaign, fundamentally altering the landscape of immigration enforcement and due process protections.

The legal challenge, brought by immigrant rights advocacy group Make the Road New York, argues that this policy circumvents essential legal protections. The case has attracted support from Democratic attorneys general from nineteen states, including California, New York, Illinois, and Massachusetts, who filed briefs arguing that the expanded use of expedited removal violates constitutional principles.

The Courtroom Debate

During the recent hearing, the Justice Department’s Drew Ensign presented the administration’s position that immigrants without legal authorization who have been in the country for less than two years are not guaranteed due process rights under the Constitution. Ensign argued that these rights are reserved for U.S. citizens and that Congress, through legislation, and Supreme Court precedents have restricted immigrants’ access to due process protections. He further contended that because Congress authorized the Department of Homeland Security secretary to use expedited removal, the courts lack jurisdiction to intervene.

The three-judge panel—consisting of Judges Justin R. Walker and Neomi Rao (Trump appointees) and Robert L. Wilkins (an Obama appointee)—appeared skeptical of the administration’s arguments. The judges particularly questioned whether due process rights truly don’t apply to immigrants without legal status and debated the government’s obligation to inform individuals of their rights and the procedures they face.

Judge Wilkins challenged Ensign directly, stating that even under the administration’s framework, there must be adequate notice of removal proceedings. He emphasized that notice “has to be sufficient” and “has to inform you of at least what the procedures are or what you’re facing.” Anand Balakrishnan, representing Make the Road New York, argued that the current notice provisions are inadequate, as immigrants subject to expedited removal can be deported within hours without time to challenge their removal or consult an attorney.

The Fundamental Threat to American Values

This policy represents one of the most dangerous assaults on constitutional principles in recent memory. The very idea that any person within United States territory could be deprived of due process rights strikes at the heart of American jurisprudence and our nation’s commitment to justice. The Fifth Amendment’s due process clause states that no person shall be “deprived of life, liberty, or property, without due process of law”—notably using the word “person” rather than “citizen.” This linguistic choice reflects the Founders’ understanding that basic rights extend to all individuals under American jurisdiction.

The administration’s argument that constitutional due process rights don’t apply to non-citizens creates a perilous precedent. If the government can determine that certain classes of people are undeserving of fundamental legal protections, what prevents future administrations from expanding this exclusion to other groups? This slippery slope threatens the rights of permanent residents, visa holders, and potentially even naturalized citizens who might be deemed “not American enough” by whatever administration holds power.

The practical implications of this policy are equally alarming. Under expedited removal, individuals—including those with legitimate claims to remain in the United States—can be deported within hours without meaningful opportunity to consult legal counsel, gather evidence, or present their case to a neutral decision-maker. This creates an unacceptable risk of error, potentially resulting in the removal of people who have valid asylum claims, family ties, or other legal grounds to remain in the country.

The Human Cost of Expedited Removal

Beyond the legal and constitutional concerns, we must consider the human impact of this policy. Immigrants subject to expedited removal often include individuals fleeing violence, persecution, or extreme poverty. They may include parents of American citizen children, long-term residents who have built lives in their communities, and people who simply lack the documentation to prove their length of residence.

The requirement that individuals prove two years of continuous presence places an unreasonable burden on vulnerable populations. Many immigrants, particularly those without legal status, lack the documentation or resources to easily establish their length of residence. They may not have kept rental receipts, utility bills, or other records that would satisfy immigration officers. In many cases, they may not even understand the requirement or their rights regarding it.

Judge Walker’s suggestion that immigrants “choose to be here illegally” and should therefore bear the burden of requesting special procedures reflects a profound misunderstanding of both immigration reality and American values. Most immigrants come seeking safety, opportunity, or family reunification—not to flout laws. Our system should be designed to ensure fairness and accuracy, not to create additional barriers for vulnerable people.

The Broader Implications for Democratic Institutions

This case exemplifies the ongoing tension between executive power and judicial oversight in immigration matters. The administration’s claim that courts have no jurisdiction because Congress authorized the DHS secretary to use expedited removal threatens the essential system of checks and balances. While Congress undoubtedly has broad authority over immigration policy, it cannot authorize violations of constitutional rights, and the judiciary must retain its role as protector of those rights.

The support from nineteen state attorneys general demonstrates that this is not merely a political disagreement but a fundamental constitutional concern. When nearly forty percent of states argue that a federal policy violates constitutional principles, we should take notice. These officials—representing diverse constituencies across the country—recognize the danger this policy poses to both immigrants and the constitutional order.

The Path Forward

As this case continues through the courts, all Americans who value constitutional principles must pay attention. The outcome will affect not only immigration policy but the very nature of due process rights in our country. We must advocate for policies that balance enforcement needs with fundamental fairness, that respect human dignity while maintaining border security.

The solution lies not in eroding constitutional protections but in creating a more efficient and fair immigration system. This includes providing adequate resources for immigration courts, ensuring access to counsel for vulnerable individuals, and developing clear, fair procedures that respect both the rule of law and human rights.

America has always stood as a beacon of liberty and justice. We must not allow temporary political considerations to undermine the constitutional principles that have made our nation exceptional. The right to due process—to a fair hearing before an impartial decision-maker—is not a privilege to be granted or withheld at the government’s discretion. It is a fundamental right that protects us all from arbitrary power and ensures that justice remains blind to status, origin, or circumstance.

In defending due process for immigrants, we ultimately defend it for every person in America. The chains of tyranny begin with the vulnerable, but they eventually constrain us all. We must stand firm in our commitment to constitutional principles and reject any policy that undermines the foundational rights that define our democracy.