Editorial: Liberty and justice for all, not for some

Many of the fundamental rights outlined in the U.S. Constitution are not just for citizens, but for all persons in the United States. Even, yes, undocumented immigrants.

That’s not some lay legal opinion. It’s been the view of the U.S. Supreme Court for more than 120 years.

Yet the Trump administration is openly ignoring that assurance in its crusade to kick millions of immigrants out of the country without due process.

Sure, it would be easier to dispose of the 3.4 million pending deportation cases if the government didn’t have to argue each one in court. But the Constitution is not an obstacle to overcome in the name of expediency.

Immigrants’ right to due process has been recognized by the high court ever since the government in 1903 tried to detain and deport a Japanese immigrant, Kaoru Yamataya, without giving her a chance to argue the matter before a judge. And the right has been extended to all immigrants, regardless of the legal status, since at least 1953, when the court wrote in Shaughnessy v. United States that “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”

The Trump administration would rather not bother with such legalities. As the Times Union’s Maria Silva reports, the Department of Homeland Security in July decided that people who are in the country illegally can be subject to mandatory detention – held indefinitely without trial.

Hundreds of federal judges have ruled in some 1,600 habeas corpus cases that the administration’s expansion of mandatory detention is illegal, but the government in September got an opinion it preferred from the federal Board of Immigration Appeals – which is not a court, but an executive-branch body that oversees immigration judges.

Backing up the board’s position was Judge Teresa L. Riley, who leads the Justice Department's Office of the Chief Immigration Judge. While she holds the title of “judge,” she’s an administrative judge who’s part of the executive branch, not the judicial branch.

In other words: Frustrated by the law and hampered in its rampant abuse of people’s rights by the Constitution and the judicial branch’s courts, the administration is trying to give its actions a veneer of legality with “rulings” by its own courts and its own hired judges. How convenient.

This is no abstract argument. The administration’s mass arrests have resulted in a record 73,000 people being held in detention as of mid-January, compared with 44,000 a year earlier. Attorneys across the country are challenging the mandatory detention policy, but the cases are just starting to inch their way to the Supreme Court.

This is not the first time the administration has effectively suspended the Constitution. In late January, the acting director of Immigration and Customs Enforcement, Todd Lyons, issued a memo giving ICE agents broad latitude to arrest people without a warrant on the grounds they might be “likely to escape.” That could mean simply that the individual might not be in the same location if the agent left to get a warrant.

The previous standard for warrantless arrests held that a person had to be considered a “flight risk” – that is, there was a likelihood that they would not show up for a court date.

ICE often uses administrative warrants, which are issued by a government agency, not a regular court, and as such are not particularly hard to obtain. But the new standard takes even that layer of process and protection away, thin as it may have been.

Congress, under control of Mr. Trump’s Republican party, has done nothing to rein in these abuses. That leaves states to fill the legal void.

In New York, Gov. Kathy Hochul is trying to restrain this sort of unconstitutional behavior with a proposed law that would bar what are known as 287(g) agreements, through which local police and sheriff’s departments agree to assist in federal immigration enforcement. The measure would also nullify existing 287(g) agreements made by 14 law enforcement agencies across the state. If the proposal passes – as it should -- New York would join seven other states in banning the pacts.

But states shouldn’t have to play defense against around a lawbreaking federal government any more than the federal government should be doing end runs around the Constitution.

We’ll say it again: The Constitution grants certain rights to all “persons.” Over and over, the Supreme Court has found that people in this country are “persons” whether they were born here or immigrated here legally or otherwise. That interpretation, the court has said, isn’t some relatively new contrivance; it dates back to the very writing of the Constitution.

Personhood cannot just be voided with the stroke of a bureaucrat’s pen. The sooner the Supreme Court reaffirms that principle, the better for us all. The longer the court delays, the worse for all of us.