Gallego’s and Kelly’s Support of the Lake Riley Act Undermines the Democratic Party’s Defense of Due Process Rights

I have opined previously that the Democratic Party needs to re-evaluate its public position and advocacy on immigration restrictions. I do believe that Democrats must consider publicly supporting greater restrictions on immigration.

But I find it wholly unacceptable for Democrats to advocate for or tolerate any diminution of the due process rights of any person under the jurisdiction of the United States, regardless of their immigration status. That is exactly what the Trump Administration is trying to accomplish, first de facto and ultimately de jure, with its renditions of undocumented immigrants (and even, perhaps mistakenly, asylum seekers) to El Salvador and possibly other extra-territorial detention sites.

This is why I find it regrettable and mistaken for both of Arizona’s Democratic US Senators, Gallego and Kelly, to have voted for the Laken Riley Act (LRA). Briefly, the Laken Riley Act is a piece of constitutionally suspect political theater by MAGA to crackdown on all undocumented persons in the United States and allow the states to meddle in exclusive federal jurisdiction over immigration using the false premise that it is currently too hard for us to deport the criminals within that population, such as the disgusting monster who murdered Laken Riley.

I have one main reason for this criticism of our Senators: the LRA undermines Due Process by allowing the indefinite detention of undocumented persons due merely to having been arrested for a crime. There is absolutely no contested means of determining the likelihood of an actual violation at this stage of the criminal process, i.e., it is usually wholly within the discretion of an arresting officer whether probable cause for an arrest exists, and the decision is only challengeable considerably after the fact. This is how tyranny arises – before anyone neutral can intervene.

I find it illustrative of this point something said by Gallego on Trump’s attempt to send people to El Salvador in a recent interview with the NYT (emphases added by MDB):

NYT: Should migrants be sent to Guantánamo or to prisons in El Salvador?

Gallego: Not migrants that have their due process, and especially not ones that aren’t dangerous, but certainly ones that are severely dangerous, like people that have committed crimes but we can’t legally hold them here. I think there’s something to be said about that.

NYT: I’m surprised. For gang members? Criminals?

Gallego: Why would we want to keep gang members and criminals that don’t even have a legal right to be here and Venezuela won’t take them back?

As a US Senator, Gallego certainly knows that there is no such thing as migrants that DO NOT have ‘their due process’, and therefore the category of those that ‘have their due process’ is meaningless: ALL persons, regardless of immigration status or criminal accusation, present in the jurisdiction of the United States are entitled to due process. What he should have said here is that NO person should ever be subject this kind of treatment by our government without the protection of due process, but, of course, he cannot say that, having voted in favor of the LRA, which (perhaps unconstitutionally) purports to strip away due process rights from some immigrants.

As to ‘people who committed crimes but we can’t legally hold them here’, I fail to understand to whom this might apply? This is exactly what prisons are for – to hold those who have been proven to, or who are reasonably believed to have committed crimes – so I fail to understand his meaning. I suspect the Senator of obfuscation and, frankly, bullshittery, here.

To answer Gallego’s rhetorical question in his second answer: it is not that we want to ‘keep gang members and criminals’ in the country, Senator; it is that it is beneath the dignity and power of the US government to deport anyone without respecting their right to due process under our Constitution. The might and overwhelming force of our government must be restrained by due process for all persons, not only to protect ourselves from it, but also to demonstrate to the world that we follow our own laws without fear of favor, no matter how wretched or contemptible the person at the focus of that power may be. We are a nation of laws, not of arbitrary power.

I’m aware of no such equivalent statements by Senator Kelly to those of Senator Gallego which I criticize here, but his vote is no less problematic. The Senators’ support of the Laken Riley Act is deeply problematic for many reasons, chief among them is that, as we struggle against a lawless President, it puts some Democrats on record as supporting a diminution or elimination of certain due process rights for certain immigrants. These Senators’ votes undermine our Democratic fight against arbitrary executive power by this outlaw President, who claims the right to solely and unilaterally determine whom to deport to a foreign concentration camp without due process or oversight.

We Democrats must be unequivocal: Due Process is a right of EVERYONE, or it can quickly become a right for NO ONE. To be fair, it wasn’t foreseeable when the Senators took this vote on the LRA that Trump would so blatantly assault American traditions of Due Process rights for all people, but now that the Administration’s intent to molest our Constitution in this way is clear to all, the Senators should publicly regret their votes.

The Senators should announce that subsequent events have proven those LRA votes unwise and renounce any cooperation or countenance of the Trump Administration and MAGA’s assault on Due Process, including that within the LRA. They should do so now and get ahead of history, as their decision will certainly look worse and worse over the coming years.