In a recent TV interview, United States President Donald Trump said he did not know whether he needed to uphold the US Constitution.
Trump was answering a question on NBC News last week about whether undocumented immigrants in the US are entitled to due process.
“They talk about due process, but do you get due process when you’re here illegally,” Trump asked the interviewer, Kristen Welker, NBC’s Meet the Press moderator.
“The Constitution says every person, citizens and noncitizens, deserves due process,” Welker responded.
She then asked Trump whether he agreed with US Secretary of State Marco Rubio, who said noncitizens are entitled to due process.
Trump: “I don’t know. I’m not a lawyer. I don’t know.”
Welker: “Well, the Fifth Amendment says as much.”
Trump: “I don’t know. It might say that, but if you’re talking about that, then we’d have to have a million or two million or three million trials.”
Welker: “But even given those numbers that you’re talking about, don’t you need to uphold the Constitution of the United States as president?”
Trump: “I don’t know. I have to respond by saying, again, I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said. What you said is not what I heard the Supreme Court said. They have a different interpretation.”
That was not the first time Trump had brushed aside immigrants’ due process rights.
In an ABC News interview marking Trump’s first 100 days in office, correspondent Terry Moran asked Trump, “But in our country, even bad guys get due process, right?”
Trump answered, “If people come into our country illegally, there’s a different standard.”
During a May 1 speech at the University of Alabama’s commencement ceremony, Trump said, “Judges are interfering supposedly based on due process, but how can you give due process to people who came into our country illegally? They want to give them due process. I don’t know.”
Days later, while announcing that the 2027 NFL (National Football League) draft will be in Washington, DC, Trump said, “The courts have, all of a sudden, out of nowhere, they said, maybe you have to have trials. Trials. We’re gonna have five million trials? Doesn’t work … Past presidents took out hundreds of thousands of people when needed … They didn’t go through any of this.”
Despite Trump’s dismissal of and questions about due process for immigrants, the US Constitution, legal experts and decades of court decisions agree: immigrants, regardless of how they entered the US, legally or illegally, have due process rights.
What those rights look like varies depending on how long a person has been in the US and what their legal status is.
What are due process rights?
Due process generally refers to the government’s requirement to follow fair procedures and laws. The Constitution’s Fifth and Fourteenth Amendments protect “any person” against being deprived by the US government of “life, liberty, or property, without due process of law”.
“People have a right to be heard, and there are certain steps that need to be taken before someone can, say, be jailed,” Kathleen Bush-Joseph, a lawyer and policy analyst at the nonpartisan Migration Policy Institute, said.
Several court rulings have determined that due process rights are extended to all people in the US, not just US citizens or immigrants in the country legally. The US Constitution and the Immigration and Nationality Act dictate the process the government must use to afford immigrants due process rights.
In immigration, due process generally refers to “appropriate notice [of government action], the opportunity to have a hearing or some sort of screening interview to figure out, are you actually a person who falls within the law that says that you can be deported”, Katherine Yon Ebright, a lawyer at the Brennan Centre for Justice’s Liberty and National Security programme, said.
For example, if the government seeks to deport people who are undocumented, the government generally must give them a charging document known as a “notice to appear”. Eventually, immigrants go before an immigration judge to present evidence and make a case that they qualify for some form of relief against deportation, such as asylum.
Without due process, legal experts say, US citizens could also be deported.
“The whole point of due process is to determine whether you’re the kind of person who can be subject to deportation,” Ilya Somin, a George Mason University constitutional law professor, said. “If there is no due process, then the government can simply deport people or punish them at will … Because how can you show that you’re actually a US citizen if you’re not getting any due process?”
How do due process rights differ for noncitizens compared with US citizens?
Even though all people in the US have due process rights, for noncitizens, the specifics of the process and the extent of protections vary. The term noncitizen applies to people with legal documents as well as those without any documents, including people here on visas, with lawful permanent status or without a legal immigration status.
There is a “sliding scale of different protections that people can have depending on what their [immigration] status is”, Yon Ebright said.
Noncitizens are not entitled to government-appointed lawyers during immigration proceedings, for example. And some immigrants who recently entered the US without a legal document do not have to appear before a judge before being deported; these cases are subject to what is called the expedited removal process.
Under expedited removal, certain people can be quickly deported without a court case. However, people who express fear of persecution if they return to their home countries are referred to immigration officers, who determine whether the immigrant is eligible for asylum or other deportation protections. Immigrants who pass the “credible fear” screening are referred to an immigration court where they can present their case.
In the past, people were placed in expedited removal if they were within 100 miles (about 161km) of the border and within two weeks of their entry. In January, Trump expanded expedited removal for anyone who cannot prove they have been in the US for more than two years.
The Alien Enemies Act of 1798, a wartime power that Trump invoked in March, allows the government to deport “alien enemies”. He has used that law to deport people his administration says are members of the Venezuelan prison gang Tren de Aragua, without immigration court hearings. The Trump administration has deported hundreds of people under the law.
However, the US Supreme Court ruled against the administration on April 7, saying it must give immigrants notice that they will be deported under the Alien Enemies Act, and give them “reasonable time” to challenge the deportation in court.
Although expedited removal and the Alien Enemies Act limit people’s due process protections, they do not eliminate them. “There are no exceptions to due process,” Bush-Joseph said.
Additionally, noncitizens who are charged with crimes receive the same due process protections as US citizens in criminal court, Somin said.
“All of the protections of the Bill of Rights apply [in criminal court],” Somin said. “There has to be proof beyond a reasonable doubt. He or she is entitled to a jury trial, rights against self-incrimination, right to counsel and so on.”
Why are immigrants’ due process rights making headlines now?
The Trump administration faces several court cases dealing with deportations and immigrants’ due process rights. They include challenges over Trump’s use of the Alien Enemies Act and the government’s mistaken deportation of a Salvadoran man.
Administration officials have criticised judges and rejected immigrants’ due process protections.
“Due process guarantees the rights of a criminal defendant facing prosecution, not an illegal alien facing deportation,” White House adviser Stephen Miller posted on X on May 5.
The Trump administration’s comments about due process are centred on his promise to carry out the largest deportation operation in US history. The administration’s current deportation pace is below its goal of one million people each year, the Migration Policy Institute said in an April 24 analysis.
Nayna Gupta, policy director of the immigrant rights advocacy group American Immigration Council, said the Trump administration is attempting to “get around those obstacles and those requirements” of due process “just to meet some target [deportation] number”.
To reach Trump’s goal of one million deportations annually, the administration would need to deport people who have lived in the US for years and have no criminal convictions (whom past administrations have not prioritised for deportation).
Past presidents were also required to uphold noncitizens’ due process rights, but deportation processes moved more quickly under administrations that focused on people who had recently crossed the border illegally, Bush-Joseph said. That option is more limited for the Trump administration because undocumented immigration has reached historic lows under Trump.
Trump is correct that deporting millions of people living in the US without legal documents would require millions of court cases, Tara Watson, director of the Centre for Economic Security and Opportunity at the Brookings Institution, said. That has long been the case.
Millions of immigration court cases are backlogged. And the Trump administration has fired several immigration judges who would hear these cases.
The administration’s goal for mass deportation does not change due process rules and standards.
“It is true that due process slows down the machinery of deportation, but due process is also what separates democracies from dictatorships,” Watson said.
Our ruling
Trump said, “If people come into our country without documents, there’s a different standard [for due process].”
All people in the US, regardless of their immigration status, have due process rights, based on the US Constitution and decades of court decisions. That applies whether they entered the US legally or without any documents.
For noncitizens, people’s due process protections vary based on their legal status or how long they have been in the US. Legal experts say, despite due process variations, there are no exceptions to due process requirements for immigrants.
