Stephen Miller is wrong about due process. Here’s why he’s wrong and why it matters.
Donald Trump’s deputy chief of staff for policy wrote on Elon Musk’s social media platform: “The right of ‘due process’ is to protect citizens from their government, not to protect foreign trespassers from removal. Due process guarantees the rights of a criminal defendant facing prosecution, not an illegal alien facing deportation.”
While Miller is correct that due process protects criminal defendants, the constitutional guarantee isn’t limited to that context — or to U.S. citizens.
Looking to the Constitution’s text, the amendments providing for due process apply not only to the narrower category of “citizens” but to the broader category of “person[s].”
The Republican-majority Supreme Court recently acknowledged this principle. Approvingly quoting from a prior precedent on the matter, it said just last month: “‘It is well established that the Fifth Amendment entitles aliens to due process of law’ in the context of removal proceedings.”
So that’s why Miller is wrong. That he’s so fundamentally wrong matters because he’s a top adviser to an administration that has not prioritized constitutional protections in pursuit of its deportation policies. To the extent that the Constitution represents American values, Miller’s incorrectly stated view is an un-American one. That the policy adviser is widely publicizing his un-American views makes it easy to draw a line from him to the implementation of the administration’s un-American policies. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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