THE RULE OF LAW AND RISK OF LAWLESSNESS
In public law and politics, the core meaning of the rule of law is this: that the executive branch of the government, in control of the violent agencies of state power and the tools of punishment, shall not use them lawlessly.1 It shall not imprison, execute, or otherwise punish except in accordance with prospective, promulgated law and trial conducted through fair and regular procedures. The writ of habeas corpus is the most famous instantiation of this value in the Anglo-American tradition, with medieval roots that early modern, protoliberal Whigs exaggerated into a full-blown centuries-old legal rule.
Due process is how we ensure that citizens and legal residents aren’t among those swept up and deported. Mass expulsions without judicial oversight or procedural protection would be not only a violation of international law and of the U.S. Constitution (which guarantees due process to persons, not only citizens). It would also be a grave threat to the liberty-as-security of all American residents. It stands as starkly as anything this side of Guantanamo as a rejection of the rule of law and its underlying values. For the sake of a militarized “order” on the border, Trump proposes to undermine law and liberty alike. In the most obvious way, Trump proposed to let the lawlessness of border control seep into domestic American space.
But the threat is not only hypothetical.
As it is, constitutional protections and civil liberties are weakened within a 100-mile zone from all borders, including coastlines, an area where about two-thirds of all Americans live. Customs and Border Protection (CBP) holds expanded authority in that zone to conduct searches and seizures, create checkpoints, and ask for papers, in ways that would be illegal for ordinary police. The only-partial rule of law at the border has already been projected inward.
Excerpted from:
https://niskanencenter.org/blog/law-and-border/