The world is watching the controversy over the deportation and imprisonment of Kilmar Abrego Garcia in CECOT, El Salvador’s notorious prison. Abrego Garcia is a Salvadoran national. He was protected by a court order preventing his return to El Salvador. But recently, he was sent to CECOT. The government admitted that his return in violation of the order was a mistake. For its part, the Supreme Court (a unanimous panel of 9-0) concluded that the government must do what it can to “facilitate” Abrego Garcia’s return, so that his case can be processed as if he was not erroneously sent to El Salvador.
Simple, right? Not so. Vice President JD Vance supports the deportation and imprisonment of Abrego Garcia. In a series of tweets (here is an example), he appears to make two points: (1) any legal standard that prevents the achievement of the administration’s goals to deport 20M people is deficient at best, and at worst, a stand-in for “open borders;” and (2) given resource constraints, Abrego Garcia was already given some form of due process, and any further hearings or consideration would frustrate the executive’s exercise of discretion.
These two points invite an examination of the purpose and limits of “due process”—what we in Canada call procedural fairness. It is a tall task to defend due process in the face of MS-13. No one is voting for audi alteram partem, and no winning political campaign was ever waged on the basis of nemo judex in sua causa. Nonetheless, due process is worth defending no matter the political winds.
The VP first asks:
Here’s a useful test: ask the people weeping over the lack of due process what precisely they propose for dealing with Biden’s millions and millions of illegals. And with reasonable resource and administrative judge constraints, does their solution allow us to deport at least a few million people per year?
In responding to this, I am reminded of Justice Scalia’s description of a true commitment to legal craft as requiring “an obsession with process,” in a speech depicted in the wonderful collection edited by Ed Whelan, Scalia Speaks.Justice Scalia’s point was simple, but profound. More than political scientists, or sociologists, or philosophers, lawyers have some special insight to offer on procedural form—the predictable ways in which governments must act when regulating an individual’s rights, privileges, and interests.
Process isn’t everything, but it plays several important and distinctive roles in our law. First, it prevents the government from treating individual people as pawns on a chess board in service of claimed end. Before doing something to someone, the government must treat the person as someone worthy of an explanation. Second, governments are not known to be perfect. They make mistakes. Governments are run by humans with all their error-prone biases. Perhaps it is for this reason that the law has, for centuries, recognized the value and purpose of due process. Due process is not a creation of modern, liberal bills of rights, nor is it an elite affectation. It is, in many ways, the heart and soul of administrative law across jurisdictions.
The point about mistakes is worth emphasizing. The VP says that he is willing to accept errors to accomplish his administration’s goals, but how far should this go? Do American citizens count? What about people that have depended on lawfully-granted status in the United States? The instability and arbitrariness of this kind of action can infect even those who believe they have every legal protection they are due under American law. Due process stands as an imperfect but important rampart against this action.
This means that there is value in due process enforced by the judiciary, regardless of the political context. But the VP’s comments challenge the stability of due process as a legal concept. He asks what definition of due process is required to satisfy the administration’s political goals. This is backwards. The question, rather, is how the government should structure its policy to comply with the minimal requirements of due process, which themselves build-in some deference to the executive.
In this respect, the VP’s backwards question is ironic. Though the VP fits neatly in the post-liberal zeitgeist of the times, his “useful test” is one that could have been proposed by any number of scholars, American or Canadian, in the Progressive era of the early 20th century. The Progressive era was characterized by calls (usually, by left-wing scholars and judges) to eschew formal legal concepts like due process that prevent the efficient functioning of government—as defined by current incumbents. John Willis, the Canadian functionalist extraordinaire, put it best. He lambasted “currently fashionable cults” liable to “damage…effective government if…allowed to infiltrate too deeply into the procedural part of administrative law.” He specifically called out “the sweating immigrant” challenging a deportation decision.
Willis’ point was characteristically oversold. Within it is a sincere worry about what Nicholas Bagley calls the “procedural fetish”: the ever-evolving requirements of notice and comment imposed by the judiciary in polycentric government decision-making contexts. This procedural glut can hobble government and private enterprise alike—consider the situation in British Columbia with housing. But this is a very different decision-making context than immigration decision-making, at the sharp end of the state, where the impact of state action is acute. It is one thing to impose procedural requirements on state action where the effect is diffuse and not particularized. Quite another where someone is rendered into the custody of a foreign prison.
Vance and Willis are not bedfellows I thought would enjoy each other’s company. But they are, in an ironic respect, two champions of the 1930s Progressive vision of administrative law. Adherence to a particular school of thought is not automatically worthy of condemnation. But where that school of thought reduces well-accepted legal principles to the definition of temporary political incumbents and their transient aims, it might counsel caution.
There is a second, more technical point raised by the VP’s comments. Quite rightly, he insists that due process is not all-or-nothing, and that Abrego Garcia—himself an illegal immigrant—has already been given more than enough process:
To say the administration must observe “due process” is to beg the question: what process is due is a function of our resources, the public interest, the status of the accused, the proposed punishment, and so many other factors. To put it in concrete terms, imposing the death penalty on an American citizen requires more legal process than deporting an illegal alien to their country of origin.
[…]
Because he is not a citizen, he does not get a full jury trial by peers. In other words, whatever “due process” he was entitled to, he received.
The VP’s position can be summarized: the process owed to Abrego Garcia is minimal, and at any rate, it was met. This is a common argument in procedural fairness cases. It is true that due process as a legal concept does not always lead to the same precise procedures in every case. This is as true in the United States as it is in Canada. Immigrants seeking visas and certain other immigration decisions are not owed extensive process, given the volume of applications and the interests of the affected individual. There is no trial, there is no jury, nor is there an extensive fact-finding process. The process owed is minimal, taking into account the very fact that VP Vance emphasizes—status granted at the discretion of the executive can be terminated.
But none of this applies to Abrego Garcia. He was subject to a withholding of removal order issued by a court preventing his removal to El Salvador. The government could have appealed that order. It chose otherwise. Now, it seeks to collaterally attack the order by openly defying it.
The government strenuously maintains that he is a member of MS-13, and that this justifies his deportation. It very well may. The evidence as it is now is thin—the double hearsay evidence of a crooked cop’s confidential informant and a Chicago Bulls hat appear to be the strongest pieces of evidence linking him to MS-13. He has never been charged or convicted of any criminal act, nor has a court ever adjudicated the issue of whether he is a member of MS-13 in fact. The closest a court came to this conclusion was a bond hearing in which the government’s allegations—motivated only by the confidential informant—are taken as true. It goes without saying that this is different from a positive, affirmative finding that Abrego Garcia is a member of MS-13.
The problem, then, is that Abrego Garcia has never received due process that is responsive to the government’s action—specifically, deporting him in violation of a court order for certain imprisonment. As Judge Wilkinson—a Reagan appointee, and no bleeding heart— said in his masterful opinion on the Abrego Garcia matter, if the government wishes to deport him, they can challenge the withholding of removal order, and present evidence that he is a member of MS-13. More fundamentally, it may or may not be the case that Abrego Garcia is a member of MS-13. That, as a matter of law, does not affect the process that is owed to him or whether it was met in a particular case.
Circling back to Justice Scalia, Ed Whelan points out that Scalia was fond of quoting Sir Thomas More, as depicted in A Man for All Seasons. More’s depiction in the movie should be a favourite of lawyers. He makes a persuasive argument for why the law—including due process—serves an important function regardless of the substantive merits of a particular political agenda:
“And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat…. Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
For those with confidence that they will always wield political power, More’s comment might be laughably naïve. But for those who humbly recognize that political winds always change directions; that governments, no matter how noble their goals, always make mistakes; that humans always have irresistible impulses to aggrandize power and to make others suffer its burdens; More’s comment represents a timeless wisdom. Abrego Garcia may or may not be the Devil, but the requirement of due process—minimal as it is—remains steadfast.