In an April 15, 2025, social media posting, Vice President JD Vance issued a fatwa about what Due Process is due to non-citizens in the United States. He wrote:
To say the administration must observe “due process” is to beg the question: what process is due is a function of our resources, the public interest, the status of the accused, the proposed punishment, and so many other factors. To put it in concrete terms, imposing the death penalty on an American citizen requires more legal process than deporting an illegal alien to their country of origin.
The standard from the Oracle at Ohio is not a method of determination. Rather, it is a jumbled, incomplete (“and so many other factors”), erroneous (national origin) list of factors to consider, but not how. If the Great Story Creator wanted to find a recognized standard, he could have done what actual lawyers do, find the standard in statute or case law. Alas, the DINFOS warrior would have found the standard – perhaps even remembering it from a (then) pass-fail law school in Connecticut he attended – in the 1976 Supreme Court case, Matthews v. Eldridge which laid out factors and a test – factors and a test are standard fare in the law:
Resolution of the issue here involving the constitutional sufficiency of administrative procedures … requires consideration of three factors:
(1) the private interest that will be affected by the official action;
(2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and
(3) the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.
The scheme is common sense. The government makes decisions about us all the time or delegates the authority to agents. Are our taxes correct? Did we run a red light? Can we build an extension on our house? Can we bring a juice box on an airplane? Can I see a specialist for an ailment? Are our feet too flat to join the armed forces? Can we sit in the exit row of the airplane? Just how many processes we get to protect our rights is a function of the importance of the decision on the individual (the individual’s private interest).
A dispute about a confiscated Capri Sun does not require the amount of process as an execution. Courts have waxed poetic about the individual interest in avoiding erroneous deportation. The Supreme Court wrote in 1952: [Deportation] may deprive a man and his family of all that makes life worthwhile. Those who have their roots here have an important stake in this country. Their plans for themselves and their hopes for their children all depend on their right to stay. If they are uprooted and sent to lands no longer known to them, no longer hospitable, they become displaced, homeless people condemned to bitterness and despair. The Supreme Court has noted that “deportation may result in the loss ‘of all that makes life worth living.’” Thus, the individual interest is a huge factor in a robust process being due to the individual. As for the risk of erroneous deprivation of the interest, the case of Kilmar Abrego Garcia and his removal because of administrative error shows that a robust regimen is due because of the high risk of error. As for the government’s interest, including administrative burdens, obviously rigorous due process costs money. However, the government is not being asked to create institutions and processes and the myriad of rules to govern the process – they already exist! For all the talk of huge bureaucratic efforts to remove a person, Mr. Abrego Garcia’s case could be resolved in a half-day hearing. He would have the right to appeal, but those structures also exist. Besides, due process for even for the least important government determinations, like small claims awards, requires appellate review. Courts have been clear that rights to a fair hearing adhere to anyone in the United States. Vice President Charity Ends at Home would find no support in the Constitution or case law that a non-citizen can be more easily executed than a citizen or, banishing a U.S. citizen requires more process than banishing a non-citizen. Mr. Hillbilly should consider a float in his backyard cement pond and see if he can remember anything he learned in law school. Posted April 20, 2025.