Structural Due Process in Immigration Detention

Abstract

Constitutional challenges to immigration detention traditionally rely on a noncitizen’s personal right to due process when faced with a deprivation of liberty. But this approach obscures a serious structural constitutional problem of contemporary immigration detention: the Executive’s role as both jailor and judge when depriving an individual of liberty. The consolidation of jailer and judge causes a serious structural constitutional concern because it undermines the separation of powers and interbranch checks and balances that the Framers understood to be at the heart of the Due Process Clause. This Article summarizes historical research on the meaning of due process at common law and the Founding to explain how the Fifth Amendment’s Due Process Clause provides the structural guarantee of separation of jailer from judge. It then describes the Executive’s dual roles of jailer and judge when detaining individuals who are contesting deportation in removal proceedings. After highlighting the unexamined role that structural due process concerns play in the Supreme Court’s modern immigration detention cases, the Article concludes by considering detention practices that might be challenged on structural due process grounds.