I was watching a YouTuber that I generally like who does technology work, and he just let a little stupid thing slip.
The little thing in there was about how due process means innocent until proven guilty, and how if you're against that you are un-American.
Now as many people will know, I'm not American at all, not until we become the 51st state. But even as a foreigner, I can see the giant stupid holes in such a statement.
Due process does not mean the presumption of innocence. Presumption of innocence is part of a criminal process, but it is not always part of the process which is due to you. Due process refers to people getting the process that is due to them under the law. Things that people assume are due process may not be. For example, mens rea is often communicated to others as part of due process, but there are entire classes of crimes which do not require mens rea -- establishing mens rea is not part of the process that is due to you unless it is a substantive requirement of the specific statute. There's also absolutely no presumption of innocence in a civil case, where rather than beyond a reasonable doubt, the standard is a preponderance of evidence where you basically have to prove 50 + 1% that you are probably right. In a civil case, that is the process to which you are due, further proving my point.
If a civil case were to be adjudicated on the “innocent unless proven guilty” standard, that would likely be an error of law that would be easily sent to appeal, and the appeal would certainly be won.
To say "if you don't believe in innocent until proven guilty then you're un-American" -- so our environmental regulations un-American? Is the entire civil court system
un-American? Our food safety regulations un-American? How about banking regulations? How about workplace health and safety laws? I just want to figure out how much of the US legal system we have to throw out as un-American because they don't have innocent until proven guilty in their due process.
Since I'm sure that this is a reference to immigration law, immigration law in particular has much different process due compared to most American laws. Since at least the war on terror period, And likely before that, borders are considered a special case where the process due is considerably different than domestic law.
Some of the case law includes the landmark case Chae Chan Ping v. United States, 130 U.S. 581 (1889) which said that immigration is something that constitutionally the courts shouldn't really be involved in at all, and so the congress and the executive should be given broad latitude to handle immigration law. Fong Yue Ting v. United States, 149 U.S. 698 (1893) held that immigration law is a civil matter and not a criminal matter, and so the process due under the law does not include "innocent until proven guilty", and also that there is no right under the process due under the law to habeas corpus.
Showing that the standard isn't no process ever, Boumediene v. Bush, 553 U.S. 723 (2008) shows that under certain circumstances even foreign citizens get some limited constitutional rights. In that case, Boumediene was a designated "unlawful combatant" being held in Cuba who it was found was given Habeas Corpus rights. This was a good thing in that the US Government shouldn't be able to send non-citizens to gulags in other countries.
Chae Chan Ping and some Fong Yue Ting set the precedent that generally the courts will give extreme deference to Congress and the executive in matters of immigration. In some ways, it could be argued that excessive due process is in fact a violation of the due process clause because it is providing process to which someone is not due under the law.
Mathews v. Eldridge, 424 U.S. 319 (1976) discusses the limits of the "due process clause" by explaining a test showing whether process is in fact due, and notably for my previous statement, where excessive due process would itself be a violation of the law. In the context of immigration law, Department of Homeland Security v. Thuraissigiam (2020) in a 7-2 decision agreed with this concept, with the majority decision explicitly rejecting a due process clause violation, claiming that the process requested was not due.
To show that the "due process clause" discussion goes both ways, Goldberg v. Kelly, 397 U.S. 254 (1970) discusses the requirements of the "due process clause" by showing that in an administrative case (in that case welfare), there was in fact a process due under the law, in that case an evidentiary hearing. The due process clause demands process due under the law, no more, no less.
Incidentally, until recently, the law of the land for decisions made by organizations like the EPA was Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and a concept known as "Chevron Deference". That case was overruled in last year's "Loper Bright Enterprises v. Raimondo" which finally ended a long situation where administrative organizations were given deference in court cases. This shows first that the process due under the law was highly deferential to the executive until very recently, and that the process due under the law required under the 4th and 14th amendments are subject to change.
It's frustrating when otherwise intelligent people who do their research stop doing their research and just start flapping their jaws about stuff they don't actually know about, I guess you could say that it totally breaks the illusion.
So, what does all this mean in the context of immigration law? It means that while there is a certain level of process due under the law, it is long established law that it is a lower level of process due, and courts are not required - and often are not allowed - to impose procedural requirements that go beyond what is legally mandated. Anyone who is referring to the highest levels of judicial process such as "innocent until proven guilty" are making a mistake, and likely are doing so for political purposes and in other circumstances would not pretend to misunderstand that fact... other than popular YouTubers who are speaking up on things they simply haven’t done the work to understand.
The little thing in there was about how due process means innocent until proven guilty, and how if you're against that you are un-American.
Now as many people will know, I'm not American at all, not until we become the 51st state. But even as a foreigner, I can see the giant stupid holes in such a statement.
Due process does not mean the presumption of innocence. Presumption of innocence is part of a criminal process, but it is not always part of the process which is due to you. Due process refers to people getting the process that is due to them under the law. Things that people assume are due process may not be. For example, mens rea is often communicated to others as part of due process, but there are entire classes of crimes which do not require mens rea -- establishing mens rea is not part of the process that is due to you unless it is a substantive requirement of the specific statute. There's also absolutely no presumption of innocence in a civil case, where rather than beyond a reasonable doubt, the standard is a preponderance of evidence where you basically have to prove 50 + 1% that you are probably right. In a civil case, that is the process to which you are due, further proving my point.
If a civil case were to be adjudicated on the “innocent unless proven guilty” standard, that would likely be an error of law that would be easily sent to appeal, and the appeal would certainly be won.
To say "if you don't believe in innocent until proven guilty then you're un-American" -- so our environmental regulations un-American? Is the entire civil court system
un-American? Our food safety regulations un-American? How about banking regulations? How about workplace health and safety laws? I just want to figure out how much of the US legal system we have to throw out as un-American because they don't have innocent until proven guilty in their due process.
Since I'm sure that this is a reference to immigration law, immigration law in particular has much different process due compared to most American laws. Since at least the war on terror period, And likely before that, borders are considered a special case where the process due is considerably different than domestic law.
Some of the case law includes the landmark case Chae Chan Ping v. United States, 130 U.S. 581 (1889) which said that immigration is something that constitutionally the courts shouldn't really be involved in at all, and so the congress and the executive should be given broad latitude to handle immigration law. Fong Yue Ting v. United States, 149 U.S. 698 (1893) held that immigration law is a civil matter and not a criminal matter, and so the process due under the law does not include "innocent until proven guilty", and also that there is no right under the process due under the law to habeas corpus.
Showing that the standard isn't no process ever, Boumediene v. Bush, 553 U.S. 723 (2008) shows that under certain circumstances even foreign citizens get some limited constitutional rights. In that case, Boumediene was a designated "unlawful combatant" being held in Cuba who it was found was given Habeas Corpus rights. This was a good thing in that the US Government shouldn't be able to send non-citizens to gulags in other countries.
Chae Chan Ping and some Fong Yue Ting set the precedent that generally the courts will give extreme deference to Congress and the executive in matters of immigration. In some ways, it could be argued that excessive due process is in fact a violation of the due process clause because it is providing process to which someone is not due under the law.
Mathews v. Eldridge, 424 U.S. 319 (1976) discusses the limits of the "due process clause" by explaining a test showing whether process is in fact due, and notably for my previous statement, where excessive due process would itself be a violation of the law. In the context of immigration law, Department of Homeland Security v. Thuraissigiam (2020) in a 7-2 decision agreed with this concept, with the majority decision explicitly rejecting a due process clause violation, claiming that the process requested was not due.
To show that the "due process clause" discussion goes both ways, Goldberg v. Kelly, 397 U.S. 254 (1970) discusses the requirements of the "due process clause" by showing that in an administrative case (in that case welfare), there was in fact a process due under the law, in that case an evidentiary hearing. The due process clause demands process due under the law, no more, no less.
Incidentally, until recently, the law of the land for decisions made by organizations like the EPA was Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and a concept known as "Chevron Deference". That case was overruled in last year's "Loper Bright Enterprises v. Raimondo" which finally ended a long situation where administrative organizations were given deference in court cases. This shows first that the process due under the law was highly deferential to the executive until very recently, and that the process due under the law required under the 4th and 14th amendments are subject to change.
It's frustrating when otherwise intelligent people who do their research stop doing their research and just start flapping their jaws about stuff they don't actually know about, I guess you could say that it totally breaks the illusion.
So, what does all this mean in the context of immigration law? It means that while there is a certain level of process due under the law, it is long established law that it is a lower level of process due, and courts are not required - and often are not allowed - to impose procedural requirements that go beyond what is legally mandated. Anyone who is referring to the highest levels of judicial process such as "innocent until proven guilty" are making a mistake, and likely are doing so for political purposes and in other circumstances would not pretend to misunderstand that fact... other than popular YouTubers who are speaking up on things they simply haven’t done the work to understand.
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@sj_zero Example, if you bought a car that turns out to be stolen, you are not innocent until proven guilty with respect to your ownership of that car. You never owned the car. All the owner has to show is that it is in fact his car and not yours.
This has been heavily abused with civil asset forfeiture, where they can declare money "never was yours" due to some crime being involved in its acquisition, and then you need to spend your own money to try and get it back.