How can we strive to be good citizens? One critical piece is by honoring and standing up for the rights of others.

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Stephen Miller

Stephen Miller is the Homeland Security Advisor and Deputy Chief of Staff for Policy to the President of the United States. The fact that he holds these important positions means we should take what he says seriously.

And especially when, whether by ignorance or bad faith, he is wrong.

Post by Stephen Miller, X, May 5, 2025 [1]

Recently, Miller posted on social media that due process of law in the United States is only for citizens, and all others in our country don’t have the same rights. [1]

As Ian Bremmer, head of the political risk consultancy firm The Eurasia Group, says, “the fifth and fourteenth Amendments would like to have a word.” [2]

To me, honoring what makes America, America, means upholding rights for all people that are here, not just citizens.

And when someone holds a public office, one where power has been granted to them to act on behalf of the public, that official takes an oath to support and defend the Constitution. And it’s worth noting that critical rights of all people are specifically detailed in the Constitution’s text.

These rights make for a free society and ensure that the government doesn’t abuse its authority.

One example is what Miller highlights - “due process of law.” It’s specifically called out in the Fifth and Fourteenth Amendments to the Constitution: [3][4]

Fifth Amendment: “No person shall ... be deprived of life, liberty, or property, without due process of law.”
Fourteenth Amendment: “... nor shall any State deprive any person of life, liberty, or property, without due process of law.”

From the annotated descriptions of the Constitution available on the U.S. Congress website, “The Fifth Amendment’s Due Process Clause protects all persons within U.S. territory, including corporations, aliens, and, presumptively, citizens seeking readmission to the United States.” [5]

The Fifth Amendment is pretty comprehensive in putting limits on what the government can do and in protecting individual rights; the Fourteenth Amendment ensured that these rights are protected by the States themselves.

In its full detail, the Fifth Amendment states: [6]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The bulleted list of rights guaranteed by the Fifth Amendment (in my own words, obviously…) are:

You can’t be charged with a felony unless those charges have been approved by a grand jury
- Basically, the government can’t just charge someone with serious crimes, arrest them, and hold a trial unless a grand jury of citizens has reviewed the evidence and, in their view, felt there was probable cause that you may have violated the law; only then can the government move forward with arrest and trial.
You can’t be tried for the same crime more than once
- The government can’t put you on trial and then keep coming up with new evidence over time, putting you on trial perpetually, especially after a trial acquitted you.
- If the government has a case, it has to prove it, and they have one shot to do it, ensuring that the government meets its burden of proof.
You can’t be forced to testify against yourself
- The government is the one that has the burden to prove that you violated the law, and they must do so independently.
- No forced confessions - you have the “right to remain silent.”
You can’t have a penalty imposed on you (whether your possessions, your freedom, or your life) without the government following the law to pursue its case
- Generally, from a procedural standpoint, this means that you would have to receive appropriate notice and an opportunity for a hearing. From a substantive perspective, the process, whatever it is, can’t violate certain fundamental constitutional rights.
- In other words, the government has the ability to enforce the law, with such penalties as the law allows, as long as procedures are considered fair in their application.
  - “Fair” is subject to interpretation, but that’s what the legal system is for.

[And we’re not even getting into the other specifically stated rights in the First Amendment, Third Amendment, Fourth Amendment, Sixth Amendment, and elsewhere…]

So, when Miller says “[t]he right of “due process” is to protect citizens from their government,” what’s actually true is that the right of due process is to protect all people within the United States from overreach by federal and state governments. When it comes to liberties, rights, and freedoms, the Constitution doesn’t just protect citizens, that’s not the way America works; it protects everyone.

The true way to protect the due process rights of citizens is to protect the due process rights of all people, and the Founders (both those during the Revolutionary and Civil War periods) knew this. This way, mistakes, errors, and bad faith claims are minimized, and our liberties and freedoms are upheld.

The Point of Rights

The whole point of rights is to make clear what we value and minimize these mistakes, errors, or bad faith claims by those in government when creating and administering the law.

It’s all about the decisions made by the people authorized by the government to take action. How do we make sure that these officials don’t abuse their authorities? Through the checks we have in place for how our government functions.

As an example, how does a citizen know that they won't be deported by their own government? Before we even answer this question, it might be good to clarify our descriptions of what is happening. As former FBI General Counsel Andrew Weissmann talks about this in his podcast Main Justice with former federal prosecutor Mary McCord, “deportation” implies a process is being followed. [7]

Andrew Weissmann: By the way, I was thinking of changing my language on this.
Mary McCord: Okay.
Andrew Weissmann: Because deportation tends to suggest --
Mary McCord: Suggests there was a process. Yes.
Andrew Weissmann: -- that there was a process --
Mary McCord: Yes.
Andrew Weissmann: -- that it’s an immigration process, and it also suggests that you’re being deported back to your country.
Mary McCord: And released.
Andrew Weissmann: And released.
Mary McCord: And released.
Andrew Weissmann: Exactly. Remember, these people are going to jail, which could be --
Mary McCord: That’s right.
Andrew Weissmann: -- for the rest of their lives. So it looks very criminal. Because they’re being seized here without probable cause, without a hearing. They’re being put on a plane, taken to a foreign country, which is, I think, almost all of them, not their place of --
Mary McCord: Home country.
Andrew Weissmann: -- national origin. And then they’re in prison.
Mary McCord: Right.
Andrew Weissmann: With no curing date. So, I started to think of this as the extraction.
Mary McCord: Extraction.

Given the events unfolding with the new administration, I’m afraid we can’t just trust good faith anymore. And even if we trusted the officials making these decisions, we should have the right to challenge these actions (via due process of law) if they’ve made a mistake.

If there is no due process, decisions can be made by the government (whether intentionally or by mistake) to declare someone an undocumented immigrant that should be deported.

When a government official has information (e.g., a person is in the country without having gone through the proper immigration process) and then chooses to take action (e.g., authorizes apprehension and extraction of this person from the country), there are four possible scenarios relating to this decision:

The information backs up the action AND the person is deported
The information does not back up the action AND the person is deported
The information backs up the action AND the person is not deported
The information does not back up the action AND the person is not deported

When significant power is granted to officials to act on the public’s behalf, these officials need to show their work, because people make mistakes and government authority can be abused. They need to follow the law, and do so in such a manner that, if the decision is challenged, an independent set of decision makers – in many cases, the judiciary - would agree.

But with its Trump v United States ruling, the Supreme Court felt it necessary to immunize the President from criminal prosecution for official conduct, considering “that the President would be chilled from taking the “bold and unhesitating action” required of an independent Executive.” [8]

So, now it appears we have a President that need not be worried about following the law, since the law cannot hold him accountable. We get an emboldened Executive, one that, by mistake or bad faith, feels that they can decide what the law is and not be checked by the other co-equal branches of government.

However, as we discussed above, without any checks, we get more of situation #2, where the facts don’t back up the actions, but the actions are taken anyway.

For example, the news magazine 60 Minutes found that, of hundreds of people sent to El Salvador’s CECOT prison by the federal government, the purported criminal records, justifying their removal from the country, could not be found for three-quarters of them. [9]

In October, Tom Homan, who is now the White House border czar, told 60 Minutes the Trump administration's mass deportation plan would start by removing the worst of the worst.
Tom Homan: We're gonna prioritize those with convictions. We're gonna prioritize national security threats. We have to do that. You gotta get the worst first.
But are they the worst? The Trump administration has yet to release the identities of the Venezuelan men it sent to El Salvador last month. We obtained internal government documents listing their names and any known criminal information. We cross referenced that with domestic and international court filings, news reports and arrest records whenever we could find them.
At least 22% of the men on the list have criminal records here in the United States or abroad. The vast majority are for non-violent offenses like theft, shoplifting and trespassing. About a dozen are accused of murder, rape, assault and kidnapping.
For 3% of those deported, it is unclear whether a criminal record exists.
But we could not find criminal records for 75% of the Venezuelans — 179 men — now sitting in prison.

Or, as the BBC reports here, U.S citizen children were extracted from the country by New Orleans Immigration and Customs Enforcement (ICE) officials to Honduras: [10]

Three young children who are US citizens - including one with cancer - were deported to Honduras alongside their mothers last week, according to advocacy groups and the families' lawyers.
One of the children is a four-year-old with Stage 4 cancer who was sent without medication, a lawyer for the child's family said.

And to put a finer point on it, here is what the courts are saying about the government’s actions, from District Court Judge Terry Doughty in the above case: [11]

The Government contends that this is all okay because the mother wishes that the child be deported with her… But the Court doesn’t know that [emphasis in original]… [The federal judge issued an order] “[i]n the interest of dispelling our strong suspicion that the Government just deported a U.S. citizen with no meaningful process.”

The point of due process is to limit the cases where the government doesn’t have the right information to back up their actions, whether through error or bad faith. This is what protects our liberties and freedoms, ensuring that there is some process to assess whether the facts and the law back up the action to be taken by the government.

In decision making parlance, this is called a “false positive,” and the process of upholding our rights reduce the false positives (we can't eliminate such false positives, but we can certainly reduce them…)

And maybe from the most selfish of all viewpoints, if we want to protect rights for ourselves, it’s critical to protect the rights of everyone, because erosion of rights for some will eventually become erosion of our own rights.

Also, There is No Invasion

As a foundation to justify their deportation activities, Miller and the administration have been claiming that the country is being “invaded.” Using our common sense, we’re being “invaded” when a foreign power is attacking us with military forces (e.g., think Russia invading Ukraine) or at minimum being directed by a foreign power.

Merely declaring that we’re being invaded or that there’s a rebellion or insurrection (e.g., one might look to January 6, 2021, but…) isn’t enough to claim increasing authority that normally is illegal and unconstitutional.

And when it comes to whether we are truly being “invaded,” Miller (again) is wrong.

On Tuesday, from NBC News reporting, the intelligence community indicated that such an “invasion” directed by the Venezuelan government didn’t exist: [12]

A declassified memo drafted by U.S. intelligence agencies contradicts President Donald Trump's claims that Venezuela's government controls the Tren de Aragua gang, an argument he has used to deport immigrants to an El Salvador prison.
The National Intelligence Council memo states that the Venezuelan regime of Nicolás Maduro allows criminal gangs to operate in its territory but that it is not orchestrating Tren de Aragua’s operations in the United States.
“While Venezuela’s permissive environment enables TDA to operate, the Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States,” according to the April 7 memo.

Earlier, from CNN reporting, a federal judge ruled that the Trump administration cannot rely on the Alien Enemies Act for deportations: [13]

A Donald Trump-appointed federal judge in Texas ruled that the president unlawfully invoked the Alien Enemies Act and blocked the administration from quickly deporting some alleged members of a Venezuelan gang.
US District Judge Fernando Rodriguez of the Southern District of Texas said Trump had unlawfully invoked the sweeping 18th century wartime authority to speed up some deportations. His decision means Trump cannot rely on the law to detain or deport any alleged members of the Venezuelan gang Tren de Aragua within his district.
The ruling is a significant blow to Trump’s decision in March to invoke the Alien Enemies Act, which has faced numerous legal challenges and has been halted by several courts. But Rodriguez’s ruling is the first to conclude that the president exceeded his authority by relying on a law that was intended to be used during times when the US is at war.

From Judge Rodriquez’s opinion: [14]

…the historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms. As a result, the Court concludes that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners and the certified class, or to remove them from the country.

More courts are putting stops to the administration’s use of the Alien Enemies Act. From reporting by Chris Geidner of Law Dork: [15]

No trial judge seems to think that President Donald Trump’s effort to use the Alien Enemies Act of 1798 to deport Venezuelans who the administration decided are members of the Tren de Aragua is proper.
This week alone, three district court judges have pushed back — with two judges issuing preliminary injunctions blocking the administration from acting on the proclamation within those judges’ districts and a third setting forth a schedule that could end with an order that the administration bring back the people it sent to El Salvador’s CECOT prison on the two March 15 flights.

Regarding the two district court judges approving preliminary injunctions in their districts, Geidner describes it this way: [16]

In laying out his preliminary injunction, U.S. District Judge Alvin Hellerstein wrote, “This Opinion … discusses the whole of the AEA, and shows that the Presidential Proclamation, in mandating removal without due process, contradicts the AEA. The Opinion goes on to discuss the requirements of notice and hearing under both the AEA and the Constitution. And it concludes that since Respondents have not demonstrated the existence of a ‘war,’ ‘invasion’ or ‘predatory incursion,’ the AEA was not validly invoked by the Presidential Proclamation.“
The injunction from Hellerstein, a Clinton appointee, blocked AEA proclamation-related removals in the Southern District of New York.
Hours later, U.S. District Judge Charlotte Sweeney, a Biden appointee, wrote in a preliminary injunction issued for the District of Colorado, “Having considered historical definitions of the Act’s language and attendant historical records, the Court determines that Petitioners are likely to succeed on the merits of their claim that the President’s invocation of the Act ‘through the Proclamation exceeds the scope of the statute’ and is therefore unlawful.”

Habeas Corpus

Miller kept going this week, by claiming that the administration was “actively looking at” suspending the writ of habeas corpus, or the right of a person to contest their detention or imprisonment. [17] Miller quoted the Constitution to make his case, specifically the clause from Article I, Section 9, Clause 2: [18]

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

While Miller quotes from the Constitution here, he misses several key components, but it would be better to rely on an expert to detail these more specifically.

Steve Vladeck is a professor of law at the Georgetown University Law Center and is a nationally recognized expert on the federal courts. He is also author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”

Vladeck reviews Miller’s presser statements and describes how what he says is both “wrong” and “profoundly dangerous.” Here’s an abridged version of his note (but worth a read yourself…): [19]

The original Constitution, prior to amendments, intended to limit the circumstances under which any suspension of this right can occur “thereby ensuring that judicial review of detentions are otherwise available.”
Miller conveniently leaves out the part of the clause requiring that any suspension may be warranted if “the public Safety may require it,” ensuring “that the default is for judicial review except when there is a specific national security emergency in which judicial review could itself exacerbate the emergency.”
“Only Congress can suspend habeas corpus”
“Miller gives away the game when he says “a lot of it depends on whether the courts do the right thing or not.” It’s not just the mafia-esque threat implicit in this statement (“I’ll make him an offer he can’t refuse”); it’s that he’s telling on himself: He’s suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose.”

From *Animal Farm* by George Orwell. Picture from magicalquote.com.

[Vladeck also has a great explainer on due process – while I discussed this above from a decision making perspective, Vladeck does a nice job reviewing the legal point of view, so worth a read if you want to dig in…] [20]

Our constitutional framework is one built upon three co-equal branches, but Trump and his acolytes are pushing to make one branch to be more equal than others.

Update on Big Win in North Carolina

A couple of months ago, I highlighted a case out of North Carolina, where: [22]

A narrow re-election victory by Supreme Court Justice Allison Riggs has been challenged by her Republican opponent, seeking to throw out 65,000 votes in hopes of overturning her win. Riggs’s victory has been upheld by two lower court rulings already, but this election – and its ultimate judicial outcomes – is heading toward a split North Carolina Supreme Court, having major consequences in the state.

Well, the case appears to have run its course, and democracy has come out on top. This from Democracy Docket, detailing how Riggs’s opponent finally conceded “after [a] federal judge rules to certify [her] election victory”: [23][24]

After six agonizing months of legal pingponging between state and federal courts, North Carolina’s 2024 state Supreme Court race is finally over. On Monday, a federal court ordered the state to certify Democratic Justice Allison Riggs’ narrow victory over Republican Jefferson Griffin. On Wednesday, Griffin conceded the race.
“While I do not fully agree with the District Court’s analysis, I respect the court’s holding — just as I have respected every judicial tribunal that has heard this case,” Griffin said. “I will not appeal the court’s decision.” [23]
The federal court order effectively halted Griffin’s ongoing efforts to overturn the election and disenfranchise thousands of voters. In a statement, the North Carolina elections board said the race will be certified after the federal court’s seven-day stay ends, on May 12. [24]

Update on “Local Democracy in America”

There was a nice summary article on the book, appearing in the editions of the Acorn (Thousand Oaks, Moorpark, and Camarillo).

Article from the Thousand Oaks Acorn, May 10, 2025.

I actually have some early proof copies to see how things would look once the book is in print.

The Kindle version of Local Democracy in America is available now, and a paperback version of is in the works and will be available soon:

https://www.amazon.com/Local-Democracy-America-Elections-Self-Governance-ebook/dp/B0DYZ6TDZ2/

Narratives

The book I’m reading or movie I’m watching

“The Last of Us” - on HBO

From the Wikipedia overview: [25]

The Last of Us is an American post-apocalyptic drama television series created by Craig Mazin and Neil Druckmann for HBO. Based on the video game franchise developed by Naughty Dog, the series is set twenty years into a pandemic caused by a mass fungal infection, which causes its hosts to transform into zombie-like creatures and causes the collapse of society.

The series stars Pedro Pascal and Bella Ramsey, whose characters travel across the United States in the first season.

An interesting scene that I thought made the connection to our topics of democracy. In the post-apocalyptic world, the Federal Disaster Response Agency, or FEDRA, tasked with responding to disasters and managing emergencies. FEDRA agents are laughing about their gratuitous use of force against others, describing them as “voters.” Jeffrey Wright plays Isaac Dixon, a leader of a Seattle-based FEDRA team, where FEDRA agents are recalling their escapades: [26]

Chris, a new and naïve member to the FEDRA team: “Why do you call them that? The citizens – why do you call them “voters”?”
Soldier: “I don’t know, ‘cause that’s what we f---in’ call them – who cares?...”
Dixon, injecting: “Because we took away their rights. We took away their right to vote, so somebody started calling them “voters” to mock them… So, now you know.”
Soldier: “I didn’t mean anything by it, Sarge…”
Dixon: “Of course you did, and you’re thoughtless.”

Wright’s character later takes some steps to remedy these abuses later in the episode.

GIF Game

Notes and Sources

[1] Stephen Miller [@StephenM], X, May 5, 2025, https://x.com/StephenM/status/1919377123266937140

[2] Ian Bremmer [@ianbremmer], Threads, May 5, 2025, https://www.threads.com/@ianbremmer/post/DJRnYpPR_Fl

[3] United States Constitution, Fifth Amendment, retrieved on May 11, 2025, from “Fifth Amendment,” Constitution Annotated, U.S. Congress, https://constitution.congress.gov/constitution/amendment-5/

[4] United States Constitution, Fourteenth Amendment, retrieved on May 11, 2025, from “Fifth Amendment,” Constitution Annotated, U.S. Congress, https://constitution.congress.gov/constitution/amendment-14/

[5] “Amdt5.5.1 Overview of Due Process,” Constitution Annotated, U.S. Congress, retrieved on May 11, 2025, https://constitution.congress.gov/browse/essay/amdt5-5-1/ALDE_00013721/

[6] United States Constitution, Fifth Amendment

[7] “Presumption of Irregularity,” Main Justice, Andrew Weissmann and Mary McCord, May 9, 2025, 2:48.

[8] Trump v. United States, 603 U.S. 593, 2024, https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

[9] Cecilia Vega,” U.S. sent 238 migrants to Salvadoran mega-prison; documents indicate most have no apparent criminal records,” 60 Minutes, April 6, 2025, https://www.cbsnews.com/news/what-records-show-about-migrants-sent-to-salvadoran-prison-60-minutes-transcript/

[10] Madeline Halpert, “Three US citizen children, one with cancer, deported to Honduras, lawyers say,” BBC News, April 28, 2025, https://www.bbc.com/news/articles/c4g8yj2n33yo

[11] VML et al v Harper et al, Case 1:25-cv-00550-TAD-JPM, Document 8, April 25, 2025, https://storage.courtlistener.com/recap/gov.uscourts.lawd.210781/gov.uscourts.lawd.210781.8.0.pdf

[12] Dan De Luce, “U.S. intelligence agencies contradict Trump's Tren de Aragua claims,” NBC News, May 6, 2025, https://www.nbcnews.com/news/us-news/us-intelligence-agencies-contradict-trumps-tren-de-aragua-claims-rcna205107

[13] Devan Cole, Priscilla Alvarez, and Katelyn Polantz, “Trump-appointed judge says president’s use of Alien Enemies Act is unlawful in first-of-its-kind ruling,” CNN, May 1, 2025, https://www.cnn.com/2025/05/01/politics/alien-enemies-act-trump-rodriguez-ruling

[14] J.A.V. v. Trump, 1:25-cv-00072, (S.D. Tex.), 58, May 1, 2025, https://storage.courtlistener.com/recap/gov.uscourts.txsd.2000771/gov.uscourts.txsd.2000771.58.0_1.pdf

[15] Chris Geidner, “Federal judge in Vermont orders Rumeysa Ozturk be released "immediately",” Law Dork, May 9, 2025, https://www.lawdork.com/p/rumeysa-ozturk-ordered-released-immediately?open=false#%C2%A7trumps-alien-enemies-act-proclamation-limps-along

[16] Ibid.

[17] C-SPAN, [@cspan], X, May 9, 2025, https://x.com/cspan/status/1920911944866808017

[18] United States Constitution, Article I, Section 9, Clause 2, retrieved on May 11, 2025, from “Article I,” Constitution Annotated, U.S. Congress, https://constitution.congress.gov/constitution/article-1/#article-1-section-9-clause-2

[19] Steve Vladeck, “148. Suspending Habeas Corpus,” One First, May 9, 2025, https://www.stevevladeck.com/p/148-suspending-habeas-corpus

[20] Steve Vladeck, “Bonus 133: Due Process and the Rule of Law,” One First, March 19, 2025, https://www.stevevladeck.com/p/bonus-133-due-process-and-the-rule

[21] George Orwell, Animal Farm, Harcourt, Brace and Company, New York, 1946, p 112.

[22] Mic Farris, “Kobayashi Maru,” March 23, 2025, https://www.micfarris.com/articles/kobayashi-maru

[23] “Jefferson Griffin concedes after federal judge rules to certify Allison Riggs’ election victory,” On The Docket, May 9, 2025, https://newsletters.democracydocket.com/unpacking-the-big-win-for-voters-in-north-carolina

[24] Matt Cohen, “IT’S OVER: Republican Jefferson Griffin Concedes in North Carolina Supreme Court Race,” Democracy Docket, May 7, 2025, https://www.democracydocket.com/news-alerts/its-over-republican-jefferson-griffin-concedes-in-north-carolina-supreme-court-race/

[25] Makena Huey, “Planning commissioner pens ‘Local Democracy’ book,” May 10, 2025, Thousand Oaks Acorn, https://www.toacorn.com/articles/planning-commissioner-pens-local-democracy-book/

[26] Makena Huey, “Planning commissioner pens ‘Local Democracy’ book,” May 10, 2025, Moorpark Acorn, https://www.mpacorn.com/articles/planning-commissioner-pens-local-democracy-book/

[27] Makena Huey, “Planning commissioner pens ‘Local Democracy’ book,” May 10, 2025, Camarillo Acorn, https://www.thecamarilloacorn.com/articles/planning-commissioner-pens-local-democracy-book/

[28] “The Last of Us (TV series),” Wikipedia, retrieved May 11, 2025, https://en.wikipedia.org/wiki/The_Last_of_Us_(TV_series)

[29] “Day One,” The Last of Us, written by Craig Mazin, Season 2, Episode 4, HBO, 2025.

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