The Era of Banishment Is Here
As Trump runs roughshod over our Constitution, he is cruelly banishing people without any due process of law.
Do you know your rights?
Until January 20, 2025, I was pretty certain I knew mine, including the requirements of the 5th Amendment, which guarantees the right to due process under our Constitution. That procedural guarantee, written over 230 years ago, specifies that no person can be deprived of life, liberty, or property without due process of law. But now, for more than 100 days, Donald Trump has been battering this cornerstone right that protects people’s vital freedoms from being ripped away by arbitrary, vindictive, or lawless government thuggery.
Habeas corpus
Due process means the government cannot legally seize you without evidence or in violation of other procedural rules that Congress or agencies have adopted. It also means anyone seized has a right to an independent review of the evidence asserted against them. That right, which is called “the writ of habeas corpus,” has been part of our government’s charter since the very beginning.
What it means is that under our Constitution – which Trump swore an oath to uphold – judges can force the Executive Branch to produce the person they are holding (“habeas corpus” literally translates to “you should have the body”), along with any evidence claimed to justify holding them. That fundamental right applies to everyone here, whether citizen or immigrant, whether a student, worker, full-time parent, or a child.
Yet, we’ve already witnessed masked federal agents kidnap students off the street, apparently for peacefully expressing an opinion – engaging in constitutionally protected speech and committing no crime. Such acts of force have targeted people who have lawful permanent resident status or valid student visas.
A chilling effect
And, make no mistake, this shock and awe is designed to chill dissent, while masquerading as a legitimate act to advance our national security. That claim would not be credible even if it were not being peddled by a president who pardoned violent men convicted of assaulting our Capitol Police in order to disrupt the peaceful transition of power to the Democratic candidate for president whom voters actually elected in 2020 (which, of course, it is).
We have also seen verified reports of Trump operatives grabbing immigrants who were not convicted of any gang-related crimes – or any criminal offenses – and tearing them away from their families. Trump’s agents have smuggled some of these men in the dark of night to a smirking dictator’s hellhole in El Salvador, without any due process of law. The administration also made the ridiculous claim that a drug-running gang is equivalent to an actual sovereign country in order to invoke a two-century-old law, called the Alien Enemies Act, which was supposed to be used to expel the foreign nationals of actual nations if we are at war with them. In response, Chief Justice John Roberts’ Supreme Court ordered the government to provide Kilmar Abrego Garcia, a Maryland father sent to El Salvador, with due process of law… which the Trump administration then openly disregarded.
Trump’s team has also absurdly claimed that it’s impossible to get El Salvador’s leader, Nayib Bukele, whom we are paying to be our foreign jailor, to return Abrego Garcia. DOJ lawyers previously conceded in court that Abrego Garcia was mistakenly removed, although Trump later hawked a photoshopped image with “MS-13” pasted onto Kilmar’s hand. Meanwhile, despite Trump’s supposed impotency to secure Abrego Garcia’s return to the U.S., the sexual abuser-in-chief made sure the Tate brothers, two men charged with sex trafficking in Romania, got back into this country.
But, immigrants are not Trump’s only targets for unilaterally rewriting individual rights that the Constitution commands be honored. Recently, the Trump administration quickly removed three children, including a two-year-old American citizen and another who has Stage 4 cancer, to Honduras. This happened while a court was considering a petition to protect their rights to stay here, while their mothers were being deported. It shouldn’t need to be said, but still must be in this era: Those American children have due process rights, too, just like you and me, and their rights were trampled by Trump’s delegates. And if he did it to them, who’s to say who else’s rights he’ll attempt to ignore?
The dangers we face
Everyone is in danger if such actions are allowed to proceed unchecked. No American should be allowed to be exiled. Long-standing judicial precedents even hold that banishment is a cruel and unusual punishment for the conviction of a crime, and it is therefore barred under the Constitution’s 8th Amendment. Yet Trump maniacally told Bukele that El Salvador needed to build at least five more giant prisons to hold Americans.
That is the talk of a tyrant. Trump is acting like a dictator, unprecedented in the U.S., trying to forge links in a chain that could enchain us all. We must continue to resist it – or we will see more Americans banished and sent into exile, tyrannical acts that our nation’s charter sought to free us from.
What I’m reading
Benjamin Carter Hett’s book, The Death of Democracy: Hitler’s Rise to Power and the Downfall of the Weimar Republic
This book from 2018 is relevant again because Germany deployed an array of laws to consolidate the power of its leader. Professor Hett has made clear Trump is not Hitler while also showing how history rhymes in a recent video conversation I had with Hett and Sidney Blumenthal.
’s recent letter on Trump’s outlandish claim that he does not know if he has to uphold the Constitution’s express requirement of due process of law
And, of course, the U.S. Constitution
Thanks for the free subscription. Just read my first Grave Injustice post. Good writing, but it didn't tell me anything new after listening to NPR and reading Heather Cox Richardson.