Due Process for Citizens vs. Aliens: A Legal Analysis

The Evolution of Political Tactics

• 🎯 The political landscape has shifted, with conservatives now often advocating for lower taxes and less government, while Democrats focus on issues like "standing up for illegals rights" and "lawfare."
• ⚡ A past legal battle, Spicer v. Biden, where the Biden administration had to argue for the president's right to fire appointees, is recalled as a precursor to current political firings.
• ⚠️ The speaker highlights a perceived hypocrisy where actions taken by the Biden administration (like removing board members) are criticized as unprecedented when mirrored by Trump, despite Biden having done similar actions previously.

Short-Term vs. Long-Term Political Thinking

• 🧠 Modern leftists are characterized as being "woefully incapable" of thinking about the mid to long term, focusing instead on short-term gains, akin to John Maynard Keynes's "in the long run, we're all dead" mentality.
• 📉 The evisceration of the filibuster by Harry Reid is cited as an example, where the short-term goal of passing legislation overlooked the long-term consequence of Republicans using the same tactic to confirm Justice Gorsuch.
• ⚖️ The speaker expresses a reluctance to engage in "icky tactics" but feels it's necessary for the right to "teach them a lesson" and return to normalcy.

Defining Due Process

• 🇺🇸 The speaker outlines a three-bucket theory of due process: unequivocal rights for citizens, rights for legal visitors, and a question mark for those entering illegally.
• 🗣️ The Fifth Amendment's Due Process Clause refers to "persons," but the speaker argues the Constitution is for "we the people of the United States," implying a distinction between citizens and non-citizens.
• 🔫 A crude analogy is made to the Second Amendment, where citizens have a more straightforward process to acquire firearms than aliens, legal or illegal.

Sovereign Power and Exclusion

• 🌍 The ability to exclude people from a sovereign territory is presented as the defining feature of a sovereign power, referencing theorists like Emmerich de Vattel.
• 🚫 There is no inherent constitutional right for aliens, legal or illegal, to remain in the country against its will, according to historical legal interpretations.
• ⚖️ Justice Robert Jackson's dissent in Korematsu is contrasted with his statement in Shaughnessy, where he clarified that due process does not grant a right to enter or remain in the country against its will.

The Minimum Standard for Removal

• 📜 At a bare minimum, constitutional requirements for removing an alien (legal or illegal) involve a basic habeas corpus hearing to confirm identity.
• 🏛️ These hearings are typically conducted within the executive branch's immigration courts, not Article 3 federal courts, as structured by Congress.
• ✍️ Congress has the power to legislate additional due process protections beyond the constitutional minimum, but doing so for immigration enforcement is seen as a "horrible idea."

Citizen vs. Alien Distinction

• 🛂 The speaker views the primary divide concerning due process and removal as between citizens and aliens, with less distinction between legal and illegal aliens in this context.
• 🚫 Individuals who have been deported have no right to re-enter the country.
• ⚖️ The "plenary power doctrine" grants Congress and the executive branch absolute power over immigration enforcement, with courts historically staying out of these decisions.