Anyone who’s paying even passing attention to the debate around President Trump’s aggressive immigration crackdown has no doubt heard the term “due process” a lot.
"I am not defending the man. I'm defending the rights of this man to due process," Democratic Sen. Chris Van Hollen said during an interview with ABC on Sunday while discussing his recent meeting with Kilmar Abrego Garcia, a 29-year-old Maryland father who remains in custody in El Salvador despite having been deported by mistake by the Trump administration.
It's not just Democrats who are focused on due process. Vice President JD Vance chided critics of Trump's deportations — which have sent hundreds of people to a notoriously brutal Salvadoran prison based on heavily disputed accusations that they're members of violent Latin American gangs — for "weeping over the lack of due process" that those migrants received.
A Supreme Court order from earlier this month insisted that "the Government must comply with its obligation to provide Abrego Garcia with 'due process of law.'"
Even the media can't stop talking about it. "I think due process exists for a reason. ... It is the foundation of freedom," ultra-popular podcaster Joe Rogan said in a recent episode.
"I'm so sick of hearing about due process," Fox News contributor Liz Peek said on Monday.
In each of these cases, the term is thrown out as if the meaning of due process is a given — that it’s something that everyone understands and defines in the exact same way. But it’s clear from the current debate that there are wildly differing interpretations of what due process actually means in practice when it comes to Trump’s deportation campaign.
What is due process?
Due process as a concept has been around for centuries. You could easily spend days reading dense legal histories that track its evolution all the way back to the Magna Carta, through the birth of English Common Law and its eventual roots in the American legal system.
But in the simplest possible terms, due process is the set of rules that protect citizens from having the law unfairly wielded against them. It’s the foundation of the concept that the government must respect our rights and follow the proper procedures (i.e., the process that we are due) before we can be subjected to legal punishment.
Some of the most important ideas that our entire legal system is built on, including that someone is innocent until proven guilty, are rooted in the principle of due process.
“It is horrific for someone to be accused of something they didn’t do, to be imprisoned for crimes that they didn’t commit,” Rogan said. “We have to make sure that these people are actually guilty, otherwise we become monsters.”
Due process is explicitly mentioned two times in the Constitution, in both the Fifth and 14th Amendments. The exact details of how it should be applied in the real world have been the subject of endless debate in legal circles for hundreds of years. But the core principle — that the law can be fair only if it’s bound by a strict set of rules — is almost universally agreed upon.
What does due process have to do with Trump’s deportations?
Like every other part of U.S. law, the American immigration system has a set of procedures that are supposed to be followed before someone is held in custody or deported, including the right to challenge their removal or detention in court.
Abrego Garcia and hundreds of other migrants were not just deported but sent into imprisonment in El Salvador without any of these steps taking place, based on the Trump administration’s claims that they are dangerous gang members. They have not been allowed to speak to lawyers, file for release or contest the accusations against them. Several courts, including the Supreme Court, have ruled that this violated their due process rights.
"The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order," a federal judge wrote in a ruling last week in which he excoriated the government for its "shocking" treatment of Abrego Garcia.
Trump and his fellow Republicans have repeatedly insisted that immigration authorities have made a definitive assessment that each of the deported migrants is a violent criminal who poses a serious threat to the American people.
What the courts, along with civil liberties groups and Democrats like Van Hollen, are saying is that accusations alone aren't enough. Due process requires the administration to go through the established legal process before it can detain, imprison or deport someone.
What Trump and his allies are saying
The White House has defended itself mostly by either arguing that it has in fact followed the due process that’s warranted in these cases or claiming that the threat from immigration is so great that due process must be suspended in order to combat it.
Trump has argued that he can't follow formal procedures because the courts don't have the capacity to consider the individual cases of everyone he's going to deport. "We cannot give everyone a trial," he wrote in a lengthy message on Truth Social.
Vance made a similar argument in a post on X earlier this month, writing that "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."
Other administration officials have claimed they have the authority under the law to apply a dramatically reduced form of due process in these specific cases.
"We're not making this up. We're enforcing the laws that are on the book," Tom Homan, Trump's border czar, told ABC News on Sunday.
“I’m not arguing over here that nobody should get due process, I’m just saying there’s a different process under the Alien Enemies Act,” he added, referring to the law that the administration has cited as giving it authority to conduct widespread deportations.
In separate rulings, the Supreme Court has ordered the Trump administration to halt deportations of certain Venezuelan migrants and to "facilitate" Abrego Garcia's return to the U.S. Trump railed against those rulings on social media, claiming that the court has applied "TWO DIFFERENT STANDARDS" to him and his predecessor Joe Biden. The White House also says that it does not have the power to force El Salvador to release Abrego Garcia.
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