by Jordan B. Rickards
In the popular imagination, the distinction between Barack Obama’s immigration policy and Donald Trump’s rests on a single, powerful assumption: that Obama’s millions of deportations were conducted with due process, and Trump’s are largely not. This narrative has become so entrenched in media and political commentary that it rarely receives scrutiny. And yet, it collapses upon contact with the facts. The truth is that President Obama was every bit as willing — arguably more so — to remove illegal immigrants without judicial hearings, without legal representation, and without meaningful procedural safeguards. If due process is lacking under Trump, it was already scarce under Obama, and in many cases, structurally absent.
This is not a condemnation of Obama himself, nor a lament for his choices. It is a reckoning with the system he inherited and operated—a system that, by design, does not and cannot offer full courtroom hearings to every person apprehended crossing the border. As I wrote in an earlier piece titled “Conservatism Demands Due Process, Even for Illegal Immigrants”, we must understand due process not as a rigid demand for courtroom trials in every instance, but as a flexible safeguard against arbitrary power, calibrated to what is practical and humane. “I do not suggest that this requires full blown trials for every person in every circumstance,” I wrote then, “nor months and years of waiting for a trial date. Given the scale of the illegal immigration problem and practical concerns, we can have summary proceedings… Easy cases should be disposed of expeditiously; those caught red-handed at the border need only be identified so we know who they are, and then turned around. But the harder cases where the accused raises a legitimate defense do deserve, and really demand, at least some modicum of procedure.”
Obama understood this well. Faced with mounting political pressure from the right and ballooning caseloads in the immigration courts, his administration turned to the tool most suited to bureaucratic triage: expedited removal. Authorized under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act and initially limited to recent border crossers, expedited removal empowers immigration officers, not judges, to issue deportation orders on the spot. The migrant is arrested, briefly processed, and deported, often within forty-eight hours. There is no right to counsel. No evidentiary hearing. No appeal, unless the individual articulates a credible fear of persecution, triggering a separate asylum process. It is deportation by administrative fiat.
This tool, which had existed for close to thirty years, found its fullest expression under Obama. According to Department of Homeland Security data, by 2013 more than 70 percent of all removals were conducted through expedited or otherwise non-judicial means. In absolute terms, the Obama administration removed roughly three million individuals between 2009 and 2016, more than any previous president, and the lion’s share were not deported by court order, but by officer discretion. The courts were not bypassed in error; they were bypassed by design.
And yet, public perception remains stubbornly inverted. Trump’s use of these same tools — legal, inherited, and extensively normalized — provokes national outrage. City streets filled with protesters. Editorial pages filled with invective. The very concept of due process has become a rallying cry. But what few care to admit is that this architecture, and implementation, had been constructed in daylight under the stewardship of a president widely hailed for his fidelity to law and decency. Trump has wielded the sword of expedited removal zealously, and it was Obama who showed him how.
The explanation for this discrepancy is not hard to find. Obama operated with a gentler tone and more refined public rhetoric. He spoke of “felons, not families.” He couched enforcement in the language of regret and necessity. His deportation policies, though aggressive, were administered by technocrats rather than ideologues, and therefore escaped the scrutiny that demagoguery tends to invite. But the machinery was the same. The removals were the same. And in many cases, the absence of due process was even more absolute under Obama, precisely because the system had not yet become a public controversy.
It must be reiterated, and said plainly, that expedited removal is not inherently illegitimate, it is necessary. We are the only developed nation in the world that shares a land border with an undeveloped one. Our nation cannot function if every unauthorized border crosser is entitled to the procedural protections of a capital defendant. The volume of unlawful migration, especially at the southern border, necessitates administrative streamlining. That is not a partisan claim, but a practical one. To grant a full trial to every migrant apprehended in the desert would not be justice, it would be paralysis. Obama, more than anyone, understood this. His policies were, in that respect, not cynical but sober.
But if we concede that due process must be adapted to circumstance, we must also be honest about what it entails, and what it doesn’t. To remove someone without a hearing, without representation, without an opportunity to speak or appeal, is by any reasonable standard a dilution of due process. It may be justified. It may be necessary. But it is not the same thing as adjudication. And those who condemned Trump for bypassing the courts while praising Obama for doing the same commit a kind of moral fraud, judging policy not by its substance, but by the eloquence of the man delivering it.
What is needed, then, is not a rewriting of history, but a correction of mythology. Obama did not preside over a kind and gentle deportation regime. He presided over a faster, quieter one, less visible, but no less mechanical. Biden didn’t really preside at all. And Trump, left to clean up the mess, has demonstrated that a machinery, once built, can be utilized with ease, if only one has the conviction to do so.
We can argue about the ethics of deportation, and the hard cases that require second thoughts. We can debate the boundaries of due process. But we should not delude ourselves into thinking that fairness lives only on one side of the aisle. The truth is more inconvenient than that: due process is a principle, not a performance, and if it matters at all, it must matter regardless of who holds the pen that signs the order.
