What on earth is due process?
Or rather, what in the United States is due process? Where did the idea come from? Does everyone agree on what it is and what it means? The answer is surely no—or at least seems to be no. Today, the answer is often ‘it depends’—due process is defined in ways that advance individual or political interests. Can that mean the meaning is only situational?
Sir William Blackstone, the renowned eighteenth-century English jurist, discussed the concept of due process of law—though not always using that exact phrase—in his seminal work, Commentaries on the Laws of England (1765–1769). He treated it primarily under the idea of “the law of the land,” which was a key legal term inherited from the Magna Carta.
In Chapter 7, during his discussion of a king’s authority, Blackstone makes a definitional reference to due process, citing a decree by Queen Anne that “she could inflict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land.”
And in Book 1, Chapter 1, Blackstone refers explicitly to “due process of law,” noting, “And it is enacted . . . that no man shall be forejudged of life or limb, contrary to the great charter and the law of the land: and again . . . that no man shall be put to death, without being brought to answer by due process of law.”
This is a direct reference to the Magna Carta (1215, Clause 39), which said:
“No free man shall be seized or imprisoned . . . except by the lawful judgment of his equals or by the law of the land.”
Ah, but who is a “free man”?
When Blackstone—and before him, the Magna Carta—wrote “no free man shall be seized or imprisoned,” the term “free man” had a very specific legal and social meaning in medieval and early modern England.
In his Commentaries, Blackstone echoes the Magna Carta’s language when explaining personal liberties. In that context, “free man” was understood to mean any subject of the king who enjoyed civil liberties and legal protections—essentially, anyone who was not a slave or serf and who was recognized as having full legal personhood.
By Blackstone’s time in the eighteenth century, serfdom had largely disappeared in England, and so “free man” had become more of a general term for any English subject entitled to the protections of law.
Thus, Blackstone was using “free man” in a broad, inclusive sense—essentially meaning any citizen with legal rights.
That would seem to exclude illegal immigrants, which wouldn’t mean they could be hanged without cause, but would imply that they were not entitled to all the niceties of due process.
In Blackstone’s time, there were also two well-known maxims:
“Lex non cogit ad impossibilia” or “The law does not compel the impossible.”
and
“Lex nil facit frustra, nil jubet frustra” or “The law does nothing and commands nothing in vain.”
Blackstone stressed that legal rules must be rational and enforceable. He emphasized that law is meant to promote justice and that unjust or impractical laws undermine both their intent and public confidence.
What does all that tell us? It tells us that there is no historical need to provide a hearing to each and every immigrant who came into this country illegally during the Biden presidency.
A quick look at the numbers shows the impossibility of granting each of them a “due process” hearing.
Approximately 13 million people entered the U.S. illegally during Biden’s administration.
A January 2025 Congressional Research Service report finds that the Department of Justice Executive Office for Immigration Review (EOIR) currently employs 735 judges, almost triple the number from a decade ago, with 642 total courtrooms across the country.
At the end of Fiscal Year 2024, the EOIR had processed over 700,000 cases (the largest number in agency history) and yet still had a backlog of almost 4 million additional cases!
This results in an average pending caseload of 5,331 per judge.
A 2014 Washington Post article described how, even at that time, one federal judge in Arlington, Virginia, needed to process an immigration case every seven minutes to keep up with his quota.
In 2024, it took a median of 46 days to process non-review cases (cases involving removal, deportation, exclusion, asylum-only, or withholding-only).
Before any deportation can occur, an immigrant appears before a judge in a “master hearing,” a public hearing where multiple defendants appear before the same judge.
According to the law firm EMP Law, a master hearing in immigration court is “usually quick, often lasting between five and twenty minutes, depending on the circumstances.”
After the master hearing comes an individual hearing, in which a defendant can present their full defense and reasons for contesting deportation.
According to the legal publisher Nolo, an individual hearing is typically scheduled to last between one and four hours, and “in some cases, the testimony and evidence presentation can take much longer than four hours.”
An individual hearing is “usually the last hearing before the judge makes a final decision” about an immigration case, per Curbelo Law.
Assuming that, on average, a judge can successfully process an immigration case from start to finish in 5 hours (15 minutes for a master hearing, 2 hours prep time, and ~3 hours for an individual hearing):
For the 735 current immigration judges to process each of the 13 million illegals who entered the country during Biden’s term, it would take:
Thirteen million cases divided by 735 judges equals 17,687 cases per judge.
17,687 cases per judge times 5 hours equals 88,435 hours per judge.
For context, it would take a judge working 50 hours per week, 50 weeks a year (2,500 hours total), doing nothing but processing immigration cases, over 35 years to process that many illegal immigrants.
That’s ridiculous! Due process cannot mean that all the illegal immigrants get a full hearing—of the kind the Democrats want to give them for the purpose of paralyzing the effort to deport them.
As we learned in Latin class, “Lex nil facit frustra, nil jubet frustra.”
Pass it on.
***
Daniel Oliver is Chairman Emeritus of the Board of the Education and Research Institute and a Director of Pacific Research Institute for Public Policy in San Francisco. In addition to serving as Chairman of the Federal Trade Commission under President Reagan, he was Executive Editor and subsequently Chairman of the Board of William F. Buckley Jr.’s National Review.
Email Daniel Oliver at Daniel.Oliver@TheCandidAmerican.com.
This article clearly states the enormity of the immigration problem based on attempting to funnel all illegal immigrants through a legal funnel too narrow to deal with what is designed to overwhelm Fifth Amendment pleadings. In reality it represents an already arrived Cloward-Piven strategy using immigration created by an invasion. Although this is the result of a well designed strategy it was additionally based on needing reinterpretations and misinterpretations by the courts. For that ideologue rogue justices needed to be inserted as judicial wrecking balls designed to thwart original intent. Chuck Schumer made that point clearly and without any embarrassment.
Due process is about protecting life, liberty and property. It is afforded by law to those residing in America. Can deporting a person be interpreted as depriving them of their lives, their liberty or their property? In terms of the law that is the only question a judge presented with the complaint by a litigant in his district, and not in some other district, as Constitutionally understood (or should be) needs to rule on.
Certainly deporting people is not the same as killing them. Removing people who cannot substantiate a legal right to reside is not limiting their liberty when they are returned to where they originally came from and thei property, unless stolen, is not being confiscated. In most countries problems arrive, not from deportation but, instead, by being forced to stay after property is confiscated, incarceration is pursued and lives are taken without being afforded any due process. That is not what the Trump Administration is doing. Furthermore, they need to have standing. That is what citizenship is about.
Article III, Section 3 illuminates the role the Courts are required to recognize. “–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” Notice the use of the word “Citizen”? Notice that the Eleventh Amendment changed some of the language and made it more restrictive yet, also, once again, the word “Citizen” is used to establish standing. Should the Executive be forced to accept an alternative interpretation of Section 9 by the SCOTUS let alone a district judge? Theses are the same people who see Jan 6 as an Insurrection based on the 14th Amendment but refuse to see 13 million people storming past border guards as an Invasion and what it means to habeas corpus as clearly stated by this passage: 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. This argument can only be made by the Executive who is Constitutionally charged to deal with it. The argument may be challenged by an overreaching judiciary but cannot be defeated.
Reading, AND UNDERSTANDING, the data published by the EOIR can be frustrating. The terms used, often, do not mean what an average person thinks they mean. Mr. Oliver does a good job of describing the process, however. What is difficult to parse out at the EOIR website is how many pending cases are asylum claims and how many are just deportation examinations.
To help clarify and expand on Mr. Oliver’s explanation, one must understand there are Immigrant Administrators AND Immigration judges. When Oliver refers to the “master hearing” he means when the defendant appears before the Immigrant Administrator. Most cases are resolved at that point where the defendant does not contest a removal order. Only cases where the examination and removal are contested, does the case go before an Immigrant judge.
Most of the non-asylum cases are completed at the Administrator level. Asylum cases, though, almost always go to the Immigration Court and the Immigration judge. It is these asylum cases Oliver cites as being the bulk of the 4 million in case backlogs.
Once a defendant is declared removable, a removal order is created. A few, and only a few, are remanded into custody pending removal. Most are given removal orders and sent home to await ICE knocking on their doors. AT the EOIR site, these individuals are referred to as non-detained. Currently, there are over 1.1 million illegals who are non-detained and have been given removal orders still waiting for that door knock.
Most of these non-detained individuals come from five different countries. The list of countries and the numbers of the non-detained are listed below:
“Non-detained” means a person given a deportion order who hasn’t been placed in detention custody AND having no record of leaving the country. These are the five countries that have the highest number of non-detainees:
Honduras - 261,651
Guatemala - 253,413
Mexico - 252,044
El Salvador - 203,822
China-37,908
So even worse than the backlog facing Immigration Courts, is the backlog of those who have ALREADY had their Due Process and are still here. We not only need more Immigration Judges, we desperately need more ICE agents OR the appointment of other law enforcement agencies that can perform the same duties.
Lastly, the vast majority of cases seen at Immigration Courts are from those whose names were taken at the border when they first entered the country. Harder to find are the got-a-ways—whose names we do not know, and VISA overstays that fly below the radar. DHS and ICE estimate that nearly 40% of the total number of illegal aliens are VISA overstays.
I have no idea whether monies were set aside in the Big Beautiful Bill for funding more Immigration Courts and the hiring of more ICE agents, but, if it wasn’t, Congress will have screwed We-the-People, once again.
Task, one thing I’m seeing more and more of at the Supreme Court level, is a reluctant Roberts being forced by Left Wing Circuit Court decisions to more fully define a president’s Article II powers. It is of supreme irony to me that just as the lawfare against Trump backfired, the lawfare of the ACLU and compliant Leftie judges is backfiring too.
Roberts NEVER wanted to deal with this issue, but the Left is forcing him into it.
As someone who is privy to conversations a friend of mine has had on many occasions with Roberts’ sister plus his friendship with Eisen and other Trump haters made me aware, a long time ago, that, even without suspected compromises, he has not only morphed into a non Conservative Justice but, worse, denies, as leftists do, clear Constitutional obligations and, furthermore, carries weaklings, such as Barrett, along with him. He is worse than Biden because Biden was significantly mentally challenged. Roberts’ is no fool. He and Barrett have been coopted by the dark side. They represent clear and present dangers not only to the Republic but to the world.
Robert’s mask came fully off when it was revealed he belonged to a legal club, that among its members, included Judge Boasberg. And then, it came out they like to hang out together.
It is laughably sad when one we depend on so greatly, values the DC Cocktail circuit more than they do the American people.