By Andrew C. McCarthy
Saturday, April 19, 2025
JD Vance is a smart fellow. That’s why he’s often
infuriating — too smart not to know that the nonsense he spouts is nonsense.
Well-framed nonsense, to be sure. Demagoguery, to be effective, has to be well
framed: A grandiloquent rationalization for shredding the Constitution has to
be pitched as a defense of constitutional principle if, as the speaker intends,
the former is to be taken by the listener as the latter. All the while, though,
the speaker knows exactly what he’s doing.
Vice President Vance issued one of his claptrap-laden
diatribes on social media Wednesday, slamming
“the media and the far left” who are “weeping over the lack of due process” in
the Trump administration’s illegal deportations of people it alleges — probably
correctly in most instances — are members of criminal gangs. Vance spotlights
Kilmar Armando Abrego Garcia, the illegal alien and Salvadoran national whom —
the Trump Justice Department itself has confessed to the Supreme Court — the
administration unlawfully deported to El Salvador.
It is natural for Vance to dwell on Abrego Garcia. It’s
topical, after all, with the administration cruising toward being held in
contempt by a federal judge (I should say, yet another federal judge) because it is stonewalling about
its flouting of an order, endorsed by the Supreme Court, that it facilitate his
return to the United States. It’s an order with which the administration could
easily comply but it has decided to ignore. The best explanation is the
simplest: Trump intends to illustrate that he has amassed uncheckable power.
That is, having extirpated what made the Republican Party conservative and
constitutionalist, and with Congress thus no obstacle (at least for the next 21
months), the president wants it known that such constitutional constraints on
executive power as courts and due process are no longer operative.
That was the point of the vice president’s post: Due
process is for whiners, and if you’re “weeping” over its sudden death, you’re
the problem.
Abrego Garcia is also a natural target for Vance’s
bombast because, in the idiocy of modern American politics — the politics of
pro-Trump and anti-Trump derangement — Democrats are playing to type. Led by
Senator Cory Booker (D., N.J.), some of their 2028 hopefuls (against one of
whom Vance plans to be the opposite number) are queueing up for flights to El Salvador. Senator Chris Van
Hollen (D., Md.) even hopes for admittance to CECOT, Trump pal Nayib Bukele’s
notorious terrorism mega-prison, so he can visit “Kilmar,” the cuddly illegal
alien he calls “my constituent.”
“Constitutional crisis” is a phrase often invoked and
rarely accurate. But now, we actually have one: the evisceration of due
process, the justice for all without which we can’t have the liberty
in the republic to which we pledge allegiance. But as ever, it is erupting
within our clown show. By Vance’s lights, you should feel good about voiding
due process because to be opposed necessarily means you are flocking to the
pom-pom squad of a man who may very well be a member of the vicious
international criminal gang, MS-13 (Mara Salvatrucha) — even if the
Trump administration is assiduously misleading the public in claiming that two
“courts” have “ruled” that he is.
(In point of fact, two immigration tribunals — which are
Justice Department components, not Article III judicial courts — ruled in 2019
that Abrego Garcia should be denied bail, not that he is an MS-13
member; he has never been formally accused of, much less convicted of, some
MS-13-related crime. The denial of bail was supported, in part, by an
unidentified, uncorroborated informant, whom the DOJ “courts” credited. What
the administration doesn’t tell you is, subsequently, a third DOJ immigration
“court” allowed him to be released, without apparent objection from or appeal
by the Trump-45 Justice Department. Since then, the two actual federal courts
that have weighed in this month have scoffed at the weakness of the Trump DOJ’s
evidence that Abrego Garcia is an MS-13 member. That doesn’t mean he’s not one,
just that the feds haven’t proven it.)
Vance’s anti-due process position is just as daft as the
Democrats’ sudden enthusiasm for Abrego Garcia. In a nutshell, the vice
president argues that “Joe Biden allowed 20 million illegal aliens into our
country” in violation of our laws; and Trump and Vance were elected “to solve
this problem”; ergo, the Trump administration’s reimagining of due process —
i.e., its violation of the laws — must be indulged since there is no other
practical possibility of deporting “at least a few million people a year.”
It wouldn’t be a combative Vance post without hyperbole:
The 20 million figure is a gross exaggeration. It would be more accurate to say
that, after President Biden’s disastrous border collapse and non-enforcement
policies (which, here on what the vice president would have you believe is “the
far left,” we have inveighed against for four years), there are now probably a
total of 20 million illegal aliens in the country (though, thankfully, a
self-deportation trend may be emerging due to strong Trump/Vance border
security and immigration enforcement policies). The Republican-controlled House Homeland Security Committee estimates that border
agents “encountered” about 10.8 million illegal aliens during the Biden years.
A high percentage of those, but not all of them, were admitted. The committee
does not include “got-aways” — aliens who evaded “encounter” as they snuck in; Andrew Arthur of the Center for Immigration Studies (CIS)
has estimated that roughly 860,000 got-aways entered in 2023 alone, and, according to CIS’s Todd Bensman, the four-year figure under
Biden can conservatively be pegged at more than 2 million.
Through non-enforcement and a variety of illegal “parole” schemes, then, Biden is probably
responsible for swelling the illegal-alien population by over 10 million.
That’s horrific. There’s no need for Vance to tart it up. Providing a
reasonably accurate figure would still have given him a strong case for all the
dysfunction he rightly catalogues — “extraordinary burdens” that “overwhelm”
“schools, hospitals, housing, and other essential services,” and inexorably
result in the entry of some illegal aliens who’ve “committed violent crimes, or
facilitated fentanyl and sex trafficking.”
Vance took a solemn oath “to bear true faith and
allegiance” to the Constitution, which includes the very inconvenient Fifth and
14th Amendment guarantees that no person — not just citizens, but
no person — shall “be deprived of life, liberty or property, without due
process of law.” He writes, nevertheless:
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.
As the Yale Law alum well knows, that is specious. The
executive branch executes the laws enacted by Congress; that is
the duty the president swears to “faithfully execute.” What process is due is,
first and foremost, a function of congressional statute, since it is primarily
the task of the legislature to balance “our resources [and] the public
interest,” as well as “the status of the accused” (by which I assume Vance
means the illegal-immigrant status of Abrego Garcia, though he is not an
“accused” since the Trump administration never actually charged him with a
crime) and the “proposed punishment” (presumably this refers to what Vance
later describes as “deporting an illegal alien to their [sic] country of
origin”).
The process that is due to aliens depends on what
process Congress has prescribed. Vance doesn’t mention this because the
Trump administration is flagrantly violating immigration statutes. It is quite
remarkable to find people who railed (and properly so) against the lawlessness
of Biden and Obama in usurping Congress’s authority, particularly over
immigration law, now arguing that they have a free-floating power to ignore
Congress — under the guise of unilaterally determining “what process is due.”
Not your job, Mr. Vice President.
Turns out the Trump administration and its political base
don’t want roll back the excesses of Obama and Biden, they want to be Obama
and Biden, just in the pursuit of their contrary objectives. That, inevitably,
will ensure that the next Democratic president, probably in 2029 at the rate
things are going, will be Obama and Biden cubed.
And how strange of Vance to pick Abrego Garcia as the
beta test for his newfangled due process. Adopting the habit of Trump officials
of making up their own facts as well as their own law, Vance argues that all
the administration is doing is returning an illegal alien to his home country
(as Secretary of State Rubio claimed this week, what’s
“supposed to happen”); since Abrego Garcia is “an MS-13 gang member,” why
“demand that he be returned to the United States for a *third* deportation
hearing”? Those who argue for such a thing, Vance asserts, are “really saying
they want the vast majority of illegal aliens to stay here permanently.”
This is so mendacious it’s hard to decide where to begin
— even accepting for argument’s sake Vance’s blithe claim that Abrego Garcia is
an MS-13 member, which, again, Trump officials chant as a mantra but no one has
actually proved.
Why is it controversial that the Trump administration,
with no due process, snatched Abrego Garcia on the street in Maryland, put him
on a plane to El Salvador, and stashed him in a prison that, apart from its
reputation for being inhumane, is teeming with Salvadoran gang members?
The reason it is controversial is that, based on a
congressional statute that prescribes what process is due in the context of
removing illegal aliens from the United States, an immigration “judge” from the
Justice Department in Trump’s first term ordered in 2019 that Abrego Garcia be
given “withholding of removal” to El Salvador, concluding that he had a
well-founded fear of persecution from Salvadoran gang members who might kill
him if he returned there. Those, of course, would be gang members presently incarcerated
in the prison to which the Trump administration has now consigned Abrego
Garcia, in the country to which it was illegal to send him.
And why is that withholding of removal order still in
effect six years later? Not mentioned by Vance is that the first Trump Justice
Department not only failed to appeal the 2019 withholding of removal order but
then allowed Abrego Garcia to be released from custody so he could live and
work in Maryland. And then the second (and current) Trump Justice Department
apparently decided not to try to reopen and reverse the 2019 withholding of
removal order. In the interim, putting aside the four years of Biden sabotage,
in the two years President Trump was in power, his State, Homeland Security,
and Justice Departments collectively failed to find a different country that
would accept Abrego Garcia, a removable illegal alien who could lawfully have
been deported anyplace except El Salvador.
That’s why it’s necessary to return Abrego Garcia for
what Vance inaccurately describes as “a *third* deportation hearing” — it would
actually be a *second* removal hearing. What Vance doesn’t tell you is that Abrego
Garcia won the first hearing in the sense that there was (and is) a binding
ruling, pursuant to a congressional removal statute, that it would be illegal
to deport him to El Salvador. A new hearing is required not because Abrego
Garcia’s apologists keep going back to the well; it’s because the Trump
administration needs a do-over after losing in the first go-round and
failing to either appeal or to take other legally available steps to remove
Abrego Garcia.
A second hearing is also required because, after the
Trump Justice Department conceded to the Supreme Court that the administration
had violated the law (which was not credibly deniable), the justices unanimously endorsed the ruling by two lower
courts that the administration must facilitate Abrego Garcia’s release from
El Salvador and return him to the United States for further proceedings. Vance
asks, “What process is due”? As he knows, that’s a judicial determination based
on Congress’s immigration laws — Congress writes the laws, and the
Judicial Department must “say what the law is” if there is a concrete
controversy on that point; the executive is supposed to uphold that
arrangement, not upend it.
And no, I am not saying I “want the vast majority of
illegal aliens to stay here permanently,” as Vance risibly distorts the stance
that should be incontestable. I have a long track record as an immigration
enforcement hawk, and I called for Biden to be impeached over his border and
non-enforcement policies (see, e.g., here, here, and here) — a proposal congressional Republicans, including
Vance, had no interest in pursuing.
I didn’t urge impeachment because I was posturing or
because I delusionally thought the votes were there to impeach and remove
Biden. As I said at the time, the credible threat of impeachment articles — and
the spotlighting of the border crisis that nationally televised impeachment
hearings would cause — might induce Biden to reverse his policies. Because I
worked in law enforcement for a long time, I knew those policies would have
disastrous consequences because statutory law and due process, coupled with the
pathetically inadequate resources Congress provides for immigration
enforcement, would make it practically impossible to deport a high percentage
of the illegal aliens Biden was ushering in.
Like most Americans, I want both the removal of illegal
aliens and an executive branch that follows the law. I’m not an idiot. I don’t
expect the Trump/Vance administration to deport 20 million illegal aliens in
four short years. As to the vast majority of aliens, illegal immigration is a law
enforcement problem — crime; it’s not a national security challenge like
terrorism. We expect the government to manage crime, not wipe it out or
prevent it from happening. The societal crisis we have (Vance is right about
strained resources) is not because illegal immigration is innately perilous,
but because the government failed to manage it for decades and then allowed it
to explode in the last four years — and because one major party does not
believe we should have a border.
Like most Americans, I expect the Trump administration to
aggressively enforce the law — not break the law and pretend that doing so is
“the process that is due.” The aim should be to remove the aliens it is
practicable to remove legitimately, and in so doing to reverse the incentives
of illegal aliens to enter and remain in the United States. That way, new
aliens don’t try to come and the ones who are here self-deport in meaningful
numbers. The amount of enforcement resources Congress commits to this task is a
joke, and the Trump administration (with Republicans at least for now
controlling both houses of Congress) should be demanding much more. But for
now, the administration should be doing what it can within the law, not
flouting the law in a way that will inevitably result in court defeats on many
key parts of Trump’s agenda.
Vance claims that taking the position I’ve just outlined,
the legal aggressive-enforcement position, is “giving the game away.” By
that he means one who stakes out this position secretly “doesn’t want border
security,” doesn’t “want us to deport the people who’ve come into our country
illegally,” wants “a fake legal process,” and hopes for “ratification of
Biden’s illegal migrant invasion.”
It’s not enough to say that is self-evidently untrue. I’d
add, in all sincerity, that it is Vance who is giving the game away.
He says we who want the law enforced don’t have a plan
for deporting 20 million people — and that’s true, for there is no such
four-year plan; there’s just “do the best you can to materially reduce the
illegal population, get on a trajectory for bigger reductions over time, and
then manage illegal immigration like we manage other ordinary crime.” But to
flip it around, Vice President Vance does not tell us what his plan is for
rapidly deporting 20 million people. That’s because such a plan cannot include
faithfully executing the law. And he knows it.
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