Something important is being talked around in the discourse around Trump shipping people off to El Salvador.
These people are only accused, not convicted.
And in the U.S. legal system, the State isn’t empowered to do anything to you until you are convicted (other than making sure you stay around for the proceedings).
Seriously:
No person shall be … deprived of life, liberty, or property, without due process of law
It’s right there in the Constitution, in pretty plain language.
Now, the U.S. has never been very good about following this rule.
Especially in regards to immigration, where the State has whittled away at what process is considered due so much that the current definition is “none”.
And that is a serious systemic problem: the State should never have been able to create a parallel (and vastly watered down) legal system for dealing with immigrants.
The immunity doctrines will have to go away to fix this.
They should go away anyway, since they’re nothing but anachronistic relics of a not-yet-disappeared authoritarian past.
So, ya know.
But they have to go away to fix this problem, because as long as both the State and its agents are immunized from direct and personal repercussions for abuses of power then there’s no actual way to prevent this kind of thing from happening again and again.
Because when there’s no penalty for breaking it, the law just isn’t real.
This is why your phone locks you out for a while when you get your password wrong a few times: without that, someone trying to break into your phone could just try over and over until they succeed.
Well, politicians and police have been pushing over and over at the meaning of “No person shall be … deprived of life, liberty, or property, without due process of law” and suffering no consequences at all when they failed.
And now we’re seeing the completely predictable result of the State (and the people who run it) being systemically and personally immune from the consequences for violating the Constitution.
So: no more immunities.
They’re not in the Constitution, so at least they should be easier to fix than problems that are actually in the text.
But it’s probably harder to change a Supreme Court judge’s opinions than it is to change the actual Constitution.
So this may be another warning for next time: don’t let anyone be above the law.
It doesn’t end well.
