Senators explain ‘due process’ as Trump admin cracks down on illegal immigration

While Republicans have celebrated President Donald Trump’s crackdown on illegal immigration, Democrats have accused the Trump administration’s deportations of violating due process. 

“We need judges that are not going to be demanding a trial for every single illegal immigrant. We have millions of people who have come in here illegally, and we can’t have a trial for every single person. That would be millions of trials,” Trump recently told reporters on Air Force One.

Fox News Digital asked lawmakers on Capitol Hill to respond to Trump’s argument that illegal immigrants are not entitled to due process. 

“People come here and get a legal process called parole and have a right to due process,” said Sen. Mark Kelly, D-Ariz. “We are a country of laws, and we shouldn’t be kicking people out of the country without having that due process.”

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According to the Fifth Amendment of the U.S. Constitution, all “persons” are entitled to due process. While the extent of due process for deporting illegal immigrants has played out in the courts, Kelly made his position clear when pressed by Fox News Digital. 

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“I’ll also say, throwing out little kids who are U.S. citizens, it’s wrong, it’s dangerous. It is certainly not fair to them or their parents, but it really does affect everybody. I mean, tossing out a 2-year-old who’s a U.S. citizen is crazy,” Kelly said. 

But Republicans who spoke to Fox News Digital weren’t so sympathetic, as they doubled down on their support of the Trump administration deporting illegal immigrants. 

“Nobody should be coming into the country illegally,” Sen. Rick Scott, R-Fla., said. “[Former President Joe] Biden has ruined all this. He’s ruined the whole immigration process. He has tainted immigration. Now we have [Venezuelan President Nicolás] Maduro’s criminals that are coming in, that he sent here. We have all the drug traffickers here. We have terrorists here. These people need to get out of the country. They’re here illegally. I want this country safe.”

Scott’s comments mimic Trump’s accusations on the 2024 presidential campaign trail of Venezuelan President Nicolás Maduro intentionally sending criminals to the U.S., and blaming former President Joe Biden for the surge in illegal immigration. 

“The law does not require someone to actually have a jury trial,” Sen. James Lankford, D-Okla., countered to Fox News Digital. “A hearing can be done. It’s not a trial. It’s not a jury trial. That’s not the right of someone that’s not legally present in the country.”

Lankford said illegal immigrants are only entitled to a hearing, not a trial before a jury before deportation, which is supported by the due process clause of the Fifth Amendment. 

“No, it’s not necessary,” said Sen. Tommy Tuberville, R-Ala., agreeing with Trump. “These people are illegal.”

Sen. Eric Schmitt, R-Mo., explained to Fox News Digital that while illegal immigrants are entitled to prior notice before deportation under habeas corpus, the judicial system has not clearly defined how long that window is. 

“Basically, the courts have said under a habeas proceeding, there needs to be notice,” said Schmitt. “But the question is, what does that notice mean? Is it an hour, is it a day or is it a week? I think what you’re ultimately going to see, not under the Alien Enemies Act, but under the habeas cases, is that there’s going to be a relatively short window, and [Trump’s] going to be able to proceed with these deportations.”

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White House deputy chief of staff Stephen Miller told reporters on Friday that the White House is considering suspending habeas corpus, which he said the Trump administration has the authority to do during “a time of invasion.”

“A lot of it depends on whether the courts do the right thing or not,” Miller said.