THE 5TH AMENDMENT OF THE U.S. CONSTITUTION: DUE PROCESS

 

Amdt5.5.1 Overview of Due Process

Fifth Amendment:

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 Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law.1 Generally, due process guarantees protect individual rights by limiting the exercise of government power.2 The Supreme Court has held that the Fifth Amendment, which applies to federal government action, provides persons with both procedural and substantive due process guarantees. If the federal government seeks to deprive a person of a protected life, liberty, or property interest, the Fifth Amendment’s Due Process Clause requires that the government first provide certain procedural protections.3 Procedural due process often requires the government to provide a person with notice and an opportunity for a hearing before such a deprivation.4 In addition, the Supreme Court has interpreted the Fifth Amendment’s Due Process Clause to include substantive due process guarantees that protect certain fundamental constitutional rights from federal government interference, regardless of the procedures that the government follows when enforcing the law.5 Substantive due process has generally dealt with specific subject areas, such as liberty of contract, marriage, or privacy.

The Fifth Amendment’s Due Process Clause protects all persons within U.S. territory, including corporations,6 aliens,7 and, presumptively, citizens seeking readmission to the United States.8 However, the states are not entitled to due process protections against the federal government.9 The clause is effective in the District of Columbia10 and in territories that are part of the United States,11 but it does not apply of its own force to unincorporated territories.12 Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.13 The Clause restrains Congress in addition to the Executive and Judicial Branches and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by enacting legislation to that effect.14

Due process cases may arise under both the Fifth and Fourteenth Amendments. Both amendments use the same language but have a different history.15 The Supreme Court has construed the Fourteenth Amendment’s Due Process Clause to impose the same due process limitations on the states as the Fifth Amendment does on the federal government.16 Fourteenth Amendment due process case law is therefore relevant to the interpretation of the Fifth Amendment. Except for areas in which the federal government is the actor, much of the Constitution Annotated's discussion of due process appears in the Fourteenth Amendment essays.17

Footnotes

1.  Jump to essay-1U.S. Const. amend. V.
2.  Jump to essay-2Due Process, Black’s Law Dictionary 610 (10th ed. 2014).
3.  Jump to essay-3See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (citing Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961)).
4.  Jump to essay-4Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912).
5.  Jump to essay-5E.g., Zablocki v. Redhail, 434 U.S. 374, 386–87 (1978) (citing Loving v. Virginia, 388 U. S. 1 (1967)).
6.  Jump to essay-6Sinking Fund Cases, 99 U.S. 700, 719 (1879).
7.  Jump to essay-7Wong Wing v. United States, 163 U.S. 228, 238 (1896).
8.  Jump to essay-8United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927).
9.  Jump to essay-9South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966).
10.  Jump to essay-10Wight v. Davidson, 181 U.S. 371, 384 (1901).
11.  Jump to essay-11Lovato v. New Mexico, 242 U.S. 199, 201 (1916).
12.  Jump to essay-12Pub. Util. Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920).
13.  Jump to essay-13Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946).
14.  Jump to essay-14Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856). See also Massachusetts Supreme Judicial Court Chief Justice Lemuel Shaw’s opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857).
15.  Jump to essay-15French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).
16.  Jump to essay-16Cf. Arnett v. Kennedy, 416 U.S. 134 (1974); Heiner v. Donnan, 285 U.S. 312, 326 (1932) (The restraint imposed upon legislation by the due process clauses of the two amendments is the same.); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 610 (1936).
17.  Jump to essay-17See Amdt14.S1.3 Due Process Generally.

Judge Bars Migrant Family Separations, Orders Return Of Children Within 30 Days & Reuniting Families Separated At The Border Proves Complicated 27&28JUN18

DO NOT be fooled by the executive order issued by NOT MY pres drumpf/trump stopping the separation of immigrant children from their parents as soon as they crossed the U.S.-Mexico border, He did not do this as an act of compassion, he did it because the nation was turning against him, his policy to separate children from their parents and the entire neo-nazi drumpf/trump-pence administration. A Federal judge has  ordered to the government to reunite immigrant families, parents and their children who were separated when they crossed the U.S.-Mexico border, and she set a time frame to carry out her ruling, something drumpf/trump failed to do. This from NPR shows just how complicated it will be to accomplish what the court has ordered. Thank God we still have judges who are not intimidated by the fascist policies of this administration! 

Judge Bars Migrant Family Separations, Orders Return Of Children Within 30 Days

June 27, 20184:58 AM ET

SCOTT NEUMAN

Twitter

A protester holds a sign outside a closed gate at the Port of Entry facility, last week in Fabens, Texas, where tent shelters are being used to house separated family members.

Matt York/AP

A federal judge in San Diego has barred the separation of migrant children and ordered that those currently detained under the Trump administration's "zero tolerance" policy be reunited with families within 30 days.

The order, which came down late Tuesday, is the result of an American Civil Liberties Union lawsuit. It requires children younger than five who are detained in federally contracted shelters to be returned to their parents even sooner — within 14 days. Parents are entitled to speak with their children within 10 days, according to the ruling by U.S. District Court for the Southern District of California.

"The unfortunate reality is that under the present system, migrant children are not accounted for with the same efficiency and accuracy as property," Judge Dana M. Sabraw said in the ruling.

"The facts set forth before the Court portray reactive governance responses to address a chaotic circumstance of the Government's own making," Sabraw said in a pointed ruling clearly aimed at the Trump administration's handling of the situation on the southern border, where more than 2,000 migrant children have been separated from their parents in recent weeks.

NATIONAL

Pentagon To House Migrants At 2 Military Bases In Texas

NATIONAL

'I'm Crushed': Migrant Parents, Advocates Press For Family Reunification

"They belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution," Sabraw said.

The ACLU sued the Trump administration on behalf of a 7-year-old girl who was separated from her Congolese mother, according to Raquel Maria Dillon of member station KQED.

The nationwide injunction on migrant family separations applies to all children unless the parent are deemed unfit or do not want to be with the child, according to The Associated Press.

The ruling follows President Trump's signing of an executive order last week reversing his policy of family separations but without providing a timeline for reuniting families.

The decision also blocks the deportation of parents, unless they are considered a danger to their child.

"This ruling is an enormous victory for parents and children who thought they may never see each other again," Lee Gelernt, the deputy director of the ACLU's Immigrants' Rights Project, who argued the case, said.

"Tears will be flowing in detention centers across the country when the families learn they will be reunited," he said in a statement.

According to The Washington Post, Judge Sabraw, 59, "was nominated to the federal bench by George W. Bush in 2003. His mother was a Japanese immigrant; his father served in the U.S. Army and was stationed in Japan during the Korean War. The couple married in Yokohama, Japan, before moving to San Rafael, Calif."

Reuniting Families Separated At The Border Proves Complicated

June 28, 20185:00 AM ET

Heard on Morning Edition

NURITH AIZENMAN

People protest immigration separation policies outside Federal Court on Tuesday in El Paso, Texas. Cases of children and families seeking refuge were being heard inside the courthouse.

Matt York/AP

The Trump administration is on a deadline to reunite families separated at the southern border. On Tuesday, a federal judge ruled that all families have to be reunited within 30 days. But advocates and activists who have already been trying to reconnect individual migrant children with their parents say their experiences suggest the process of reunification will be complicated.

A case in point is Emily Kephart, who works for a nonprofit called Kids in Need of Defense, or KIND.

Kephart is based in Baltimore, but she spends her days on the phone with people in Central America, running a program that helps migrant kids in the U.S. who are headed back to their home countries — either by choice or by deportation.

"Making sure that they get connected to community support services once they get back," Kephart explains.

Two weeks ago, she got an unexpected email from Guatemala about a 6-year-old girl.

"This kid is separated from her family," recalls Kephart. "A month has gone by. And nobody has any information about where she is."

NATIONAL

A Latino Nonprofit Is Holding Separated Kids. Is That Care Or Complicity Or Both?

Back in mid-May, the girl and her father had attempted to migrate to the U.S.

"They were separated when they entered the U.S. and detained separately. And as of then nobody had heard anything about where the girl was, who she was with, how she was doing."

The father, who is still in ICE detention, had at least managed to alert his family back in rural Guatemala. Through word-of-mouth, the family had finally reached a local community group that happens to be one of the ones Kephart has worked with.

Kephart's first move was to call the hotline maintained by the Office of Refugee Resettlement — the U.S. government agency to which U.S. Customs and Border Protection had been transferring migrant children when it detained their parents at the border.

Kephart gave the operator the girl's name and date of birth. The operator typed it into a database. Then there was a pause.

"She can't find the girl in the system," Kephart says.

It was as if this girl never existed. But then there was a clue.

NATIONAL

Baltimore Group Caring For Migrant Children, Working To Reunite Them With Parents

"She does eventually say to me, you know, there's a girl coming up in the database whose first name is spelled differently and whose date of birth is like a month off. This could be your girl."

But that is all the operator would say. She told Kephart she wasn't allowed to reveal where this girl with the similar name was being held.

"[I was] so frustrated," Kephart says. "I felt like we were hitting a bureaucratic wall."

Kephart was convinced she was on the right track. So she called up a case manager at a shelter for migrant kids whom she happens to know personally. And that woman waswilling to look up and tell Kephart which shelter was holding the girl with the similar name. Kephart happened to know a case manager there, too. So she called up that shelter.

"And no sooner do I get the name out of my mouth, she says, 'Oh my gosh! Yes!' "

It was the same 6-year-old girl. The shelter had been told she had been separated from a parent, but that's all. "We've been — we don't have anything to go on!" Kephart says the case manager exclaimed. "I'm so glad to talk to you."

Now that the father and daughter have been matched, the shelter has been trying to coordinate a phone call between them. But with the father still in detention, that's proving complicated.

They're also working to set up a call with the girl's mother back in Guatemala. But here, too, there have been delays because they first needed to verify the mother's identity. Kephart managed to get a copy of the girl's birth certificate from the family and send it on to the case manager. But the first version was too blurry.

"We're talking about a phone picture sent by phone and then by email," she notes.

LAW

Judge Bars Migrant Family Separations, Orders Return Of Children Within 30 Days

The upshot: At least five weeks since the girl was taken from her father, she still hasn't spoken to anyone she knows.

"And she's 6," adds Kephart.

There's another wrinkle. This family doesn't speak Spanish very well — only an indigenous Mayan language. That means it's unclear how well anyone has been communicating with this little girl.

"The systems that are in place are absolutely not equipped to deal with this," Kephart says.

And, she notes, this girl is only one of at least 2,000 children still waiting to be reunited with their parents.