I have long maintained that there was no way that America’s border police state along the U.S.-Mexico border would ultimately be confined to the borderlands. America’s border police state, I have repeatedly emphasized, would ultimately extend nationwide. It is now doing so.
Let’s review the border-police-state tyranny that has long existed along the U.S.-Mexico border. There are domestic highway checkpoints, where travelers who have never entered Mexico are required to stop, provide identification, answer questions, and permit their vehicle to be searched. There are trespasses and warrantless searches of ranches and farms on or near the border. There are roving Border Patrol checkpoints that stop cars on the highway and subject them to warrantless searches. There is the criminalization of hiring, transporting, harboring, or caring for illegal immigrants. There are government agents who board Greyhound buses demanding to see people’s papers. There is an ugly wall along the border, one that was built through the eminent domain stealing of people’s property. There is concertina wire that has been placed along the border, including under the water in the Rio Grande so that immigrants who are swimming across the river will not see it before it cuts them up. There are military forces along the border, along with agents of the DEA, ICE, FBI, Homeland Security, and Border Patrol. There are violent raids on American businesses.
Today, that border police state is now being expanded in such a way as to destroy such fundamental freedoms as due process of law and freedom of speech. The use of illegal immigrants to accomplish the destruction of such rights is ingenious, given the extreme prejudice that many Americans have toward illegal immigrants and, in some cases, toward all foreigners. Immigration-control advocates are unable to see that the destruction of fundamental rights of immigrants also applies to Americans, or they simply don’t care that when they support and cheer what the U.S. government is doing to immigrants, they are, at the same time, supporting and cheering the destruction of the rights and liberties of the American people.
Due process of law
Let’s examine President Trump’s decision to deport a group of Venezuelan immigrants to El Salvador to demonstrate my point.
Ordinarily, under America’s legal system, everyone, including foreigners, is entitled to what is called due process of law, a principle that our American ancestors enshrined in the Fifth Amendment to the U.S. Constitution. It prohibits the government from depriving any person of life, liberty, or property without due process of law.
Due process of law is a term that stretches all the way back to the Magna Carta in the year 1215. At that time, the barons of England extracted an admission from their king that his powers over the English people were limited, not omnipotent. The Magna Carta included a provision prohibiting the king from going against people in violation of “the law of the land.” Over subsequent centuries of English jurisprudence, that term evolved into “due process of law.”
Due process came to mean, at a minimum, a notice and hearing or trial. Before the king could take a person’s life, liberty, or property, he was required to provide the accused two things: (1) formal notice of why the king was targeting him, and (2) a hearing or a trial in which the accused could be heard. Here in the United States, the accused in criminal cases is also entitled to trial by jury rather than a trial by a judge or by a military tribunal.
It is important to note that the rights guaranteed by the Bill of Rights adhere to all people, not just to American citizens.
Notice and hearing
Under America’s immigration-control system, the government has the authority to deport people who are here illegally. However, the general rule is that prior to deportation, they must be accorded due process of law. In immigration cases, this normally means a hearing before an immigration judge where the immigrant is entitled to be heard.
In most cases, immigrants are deported after such hearings. But suppose someone is not an immigrant. Suppose he is an American citizen who looks and sounds like an immigrant. The hearing enables him to make the case to the judge that he is an American citizen and, therefore, not subject to being deported. Or suppose an immigrant is able to show proper official papers entitling him to enter the United States and to be here. Or suppose an immigrant can show that if he is deported to his country of origin, he will be killed for having opposed the totalitarian regime that rules over his country.
Consider the country — El Salvador — to which those Venezuelan immigrants were deported. The U.S. government claimed that they were members of a Venezuelan gang called Tren de Aragua, which is reputed to be engaged in drug trafficking, human trafficking, and other crimes. But by sending them to El Salvador without due process of law, the immigrants were not given the opportunity to contest that assertion. In fact, after the deportations, some family members here in the United States were claiming that their husbands and sons who were deported were totally innocent of any involvement with that Venezuelan gang.
The situation is aggravated by the fact that those Venezuelan immigrants were not simply deported to a country and released. They were instead immediately incarcerated in a Salvadoran prison that has acquired a reputation of being a facility where prisoners are brutally tortured. Where is the justice or morality in that, especially if the immigrants are innocent of what they are being accused of?
Indeed, keep in mind something important — none of them was ever formally charged or convicted of being part of any illegal drug-trafficking or people-trafficking operation, either here or in Venezuela. Keep in mind also that under our judicial system, everyone, including foreigners, is presumed to be innocent until proven guilty. Yet, here are Venezuelan immigrants serving time in a brutal Salvadoran prison even though they have not been charged or convicted of anything.
Could the same thing happen to American citizens? Of course it could. Remember: The Constitution guarantees due process of law to both foreigners and American citizens. Thus, if U.S. officials now have the authority to deny due process of law to foreigners, it is not a stretch to imagine them, during the right “emergency,” also denying due process of law to Americans. In fact, it’s worth mentioning that President Trump has intimated that people who commit “terrorism” by vandalizing Teslas might be sent to El Salvador to serve out their prison sentences.
The judicial branch
So, if immigration officials choose to deny immigrants due process of law, as they did with those Venezuelan immigrants, is that the end of the story? No, because under our system of government, as devised by the Constitution, the judicial branch has the ultimate responsibility of ensuring that the executive branch complies with the dictates of the Constitution and the Bill of Rights. That’s exactly what happened here.
Presented with an application for a temporary restraining order filed by some Venezuelan immigrants, Washington, D.C., federal judge James Boasberg ordered that the government refrain from sending the Venezuelan immigrants to El Salvador until a hearing could be held on the legality of such action.
Notwithstanding Boasberg’s order, the government proceeded to transport the immigrants to El Salvador and deliver them into the clutches of Salvadoran officials. Although the mainstream press is reporting that the planes carrying the immigrants had still not arrived in El Salvador when Boasberg issued his order, government officials have still not divulged the official timeline of events, notwithstanding the fact that Boasberg has ordered them to do so.
Thus, there are two issues in this case.
First, does the government have the authority to send Venezuelan immigrants to El Salvador without due process of law? Relying on a 1798 law that authorizes immediate deportation of citizens from a country with which the United States is at war, President Trump says yes. There is only one big problem with Trump’s position: The United States is not at war with Venezuela. Certainly, Trump has not gone to Congress to seek a declaration of war against Venezuela, which the Constitution requires before the United States can wage war against another country.
To get around that problem, Trump claims that the Tren de Aragua gang is “invading” the United States, and therefore, the United States is at war. That’s ridiculous. An invasion is what the U.S. military and the CIA did to the people of Iraq — that is, soldiers, tanks, bombs, missiles, bullets, death, maiming, injuries, torture, and massive destruction. That’s clearly not what we have with those Venezuelan immigrants, whether they were in that gang or not. Indeed, Trump’s invasion justification brings to mind that guy in El Paso who walked into a Walmart and killed 23 Hispanics because he was convinced he was protecting America from an “invasion.” He was later convicted and sentenced to life in prison without possibility of parole — and rightly so.
Boasberg rejected Trump’s arguments for deporting Venezuelan immigrants without due process of law. In a 2–1 decision, his ruling was upheld by a federal appellate court. However, while upholding Boasberg’s reasoning, the Supreme Court reversed the case, holding that the case needed to be brought via habeas corpus proceeding in the states where federal immigration officials are holding the immigrants.
The second issue is whether executive-branch officials must comply with a federal judge’s order to divulge the details surrounding the time of the flights, so that the judge can determine whether such officials intentionally, knowingly, and deliberately violated his order. In what appeared to be a last-minute desperate attempt to avoid having to divulge such information, the government claimed that the information is protected by the “state secret doctrine,” a doctrine that has been used in the past to mask government wrongdoing.
Attacks on judicial review
Not surprisingly, there are right-wingers who are going after Judge Boasberg with extreme ferocity. Some of them are calling for his impeachment. President Trump has called him a “Radical Left Lunatic,” which caused the Chief Justice of the United States to issue a public reminder that our system of jurisprudence does not warrant impeachment or removal of judges who issue rulings with which people disagree. Instead, our system provides for the right to appeal such rulings.
Some Republican members of Congress are now calling for limiting the ability of federal judges to issue injunctive relief. Their proposal brings to mind President Franklin Roosevelt’s infamous court-packing scheme in the 1930s. The Supreme Court was declaring much of FDR’s socialist and fascist New Deal programs unconstitutional, which, not surprisingly, infuriated him, just as Judge Boasberg’s orders have infuriated Republicans. Thus, Roosevelt proposed a plan to Congress that would have enabled him to pack the court with his legal cronies, who would then uphold his socialist and fascist programs. While most Americans favored FDR’s programs, they also fiercely opposed his scheme to alter the judicial branch of the federal government. Public pressure led to the defeat of FDR’s court-packing scheme.
There are also right-wingers who are advising Trump to simply ignore judicial rulings. They say that since Trump was elected and federal judges were not elected, Trump has the legitimate authority to do whatever he wants, without interference by the judicial branch of government. These right-wingers remind us of the dictatorial regime of military general Augusto Pinochet in Chile, who was — and still is — deeply admired by the American right-wing. After Pinochet’s takeover in a coup, which was fully supported by U.S. officials, the Chilean lawyers and the judicial branch, scared to death of Pinochet, rolled over and failed to oppose anything he did, including his round-up of 50,000 innocent people, who were then tortured, raped, “reeducated,” disappeared permanently, or executed.
So far, Trump is indicating that he is rejecting that advice and intends to continue complying with judicial orders. That’s a good thing, because if he instead moves in the opposite direction, America will have entered the land of full dictatorship, just like in Chile under Pinochet.
Freedom of speech
Unfortunately, due process of law is not the only right that is under attack under the guise of immigration controls. U.S. officials are also targeting immigrants for deportation for protesting the Israeli government’s actions in Gaza. Apparently, if an immigrant fails to side with Israel in that conflict, that automatically means that the immigrant is “antisemitic” and therefore subject to deportation.
But under principles of freedom of speech, why doesn’t a person have the right to oppose and criticize anything the Israeli government does? Indeed, why doesn’t a person have the right to be antisemitic or, for that matter, anti-Catholic, anti-Muslim, antiwhite, antiblack, anti-Asian, or anti-anything else? Because there is so much anti-immigrant sentiment in America, immigrants make the perfect scapegoats. Therefore, it is ingenious to use them as the vehicle for destroying freedom of speech for Americans. Keep in mind, after all, that the First Amendment, like the Fifth Amendment and the rest of the Bill of Rights, applies to everyone, not just American citizens.
If U.S. officials succeed in destroying freedom of speech, due process of law, and any other fundamental rights for foreigners, they set the precedent for doing the same thing to Americans. That’s why it’s imperative that Americans who wish to live in a free society fight to protect the rights and liberties of everyone, including immigrants.
This article was originally published in the July 2025 issue of Future of Freedom.
Read the full article here
