Washington: US President Donald Trump unleashed an aggressive attack Sunday on unauthorised immigrants and the judicial system that handles them, saying that those who cross into the US illegally should be sent back immediately without due process or an appearance before a judge.
“We cannot allow all of these people to invade our Country,” Trump tweeted while on the way to his golf course in Virginia. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”
It was another twist in a head-spinning series of developments on immigration since the administration announced a zero-tolerance policy two months ago, leading to the separation of children from parents who cross the border illegally and an outcry from Democrats and many Republicans. Trump signed an executive order to end the separations last week, but the sudden shifts have led to confusion along the border about how children and parents will be reunited and to turmoil in Congress as the House prepares to vote on a sweeping immigration bill this week.
Still, the president, who has always dug his heels in when criticised, has not backed back down from his hard-line talk, even amid a national outcry over a detainment policy that has resulted in the separation of more than 2,300 children from their families.
He has instead gone on the offensive, complaining to aides about why he could not just create an overarching executive order to solve the problem, according to two people familiar with the deliberations. Aides have had to explain to the president why a comprehensive immigration overhaul is beyond the reach of his executive powers.
And privately, the president has groused that he should not have signed the order undoing separations.
“Our system is a mockery to good immigration policy and Law and Order,” Trump tweeted Sunday, adding, “Our Immigration policy, laughed at all over the world, is very unfair to all of those people who have gone through the system legally and are waiting on line for years! Immigration must be based on merit.”
But Trump’s call to ignore due process faced both constitutional questions and dissension from Republicans in Congress, some of whom have insisted that the number of judges be increased so migrant families can have their cases heard more quickly. Federal immigration courts faced a backlog of more than 700,000 cases in May, and cases can take months or years to be heard.
Sen. Ted Cruz, R-Texas, has proposed doubling the number of judges to roughly 750, while Sen. Ron Johnson, R-Wis., chairman of the Senate Homeland Security Committee, said Sunday on CNN’s “State of the Union” that he believes an additional 225 judges are needed. He noted that only 74 of the current immigration judges are serving at the border.
“We need to increase that,” Johnson said. “The Trump administration is going to try and come up with another 15,000 beds for family units. But none of this is easy.”
The House bill up for a vote this week would beef up border security and provide a path to citizenship for the young unauthorised immigrants known as Dreamers, while also effectively codifying Trump’s executive order by allowing migrant families to be detained together indefinitely.
Many on Capitol Hill believe legislation is necessary to deal with the order, since it allows indefinite detentions. Under a 1997 consent decree known as the Flores settlement, migrant families can be detained for no more than 20 days, leaving the order’s status in court in doubt.
Trump’s tweets Sunday threw new legal questions into the puzzle. Laurence H. Tribe, a constitutional law professor at Harvard, said in an email that the Supreme Court has repeatedly held that “the due process requirements of the Fifth and 14th Amendments apply to all persons, including those in the US unlawfully.”
“Trump is making the tyrannical claim that he has the right to serve as prosecutor, judge and jury with respect to all those who enter our country,” Tribe said. “That is a breathtaking assertion of unbounded power — power without any plausible limit.”
The Fifth Amendment mandates the due process of law, and the 14th Amendment, in part, expanded due process rights for immigrants, with case law asserting those rights dating back to 1886. But Justice Department lawyers under both Democratic and Republican administrations have argued that noncitizens apprehended at the border lack due process protections, said Adam Cox, a law professor at New York University, and the Supreme Court has never clearly resolved the dispute.
Since Trump was elected, his administration has been working to expand the terms of a 1996 statute that allows immigration officials to quickly deport unauthorised immigrants as well as those whose papers are believed to be fraudulent. The Trump administration has the ability to expand the statute to encompass the entire country and apply it to any noncitizen who has not been in the country for more than two years, Cox said.
“One of the things that is being considered is an expanded expedited removal to the full statutory limit,” he said, adding that “it is already true that a lot of people show up at the border get removed with no access to immigration courts or the judicial process.”
Cox said the president could be reacting to seeing a high number of people held in detention centers claiming they face harm back home. The White House did not immediately respond to a request for comment on whether the president knew the legal ins and outs of his demand.
“Many members of the administration seem to think that the high rate necessarily means a lot of fraud,” Cox said of asylum claims, “so what they could like to do is remove that process.”
