Everyone should be free to speak their minds and live without fear of masked men grabbing them for deportation to a hell hole in Louisiana or El Salvador, writes Andrew P. Napolitano.
Department of Homeland Security Secretary Kristi Noem during a tour of the Terrorist Confinement Center CECOT in Tecoluca, El Salvador, on March 26. (DHS/Flickr/Tia Dufour)
The U.S. Constitution was crafted in 1787 both to establish a new central government and to limit it. Some of the limitations are direct, some are subtle and some are hidden. The chief instrument of limitation is the separation of powers, the brainchild of James Madison.
The late Justice Antonin Scalia called the separation of powers a unique and the most freedom-enhancing aspect of the document. Madison himself would later argue that he intentionally crafted the separation so as to enhance friction and even jealousy among the three branches of government, thereby inducing fidelity to its core values, as well as transparency and accountability in the popular branches.
Thus, Congress writes the laws, the president enforces the laws and the judiciary interprets the Constitution and the laws. Congress raises taxes and declares war. The president appoints judges and wages war. The judiciary assures that neither Congress nor the president interferes with personal liberty.
Congress and the president are answerable to the voters. The life-tenured judiciary is not. The purpose of an independent judiciary is to be the anti-democratic branch of the government. Its duty is not to reflect the popular will, but rather to protect life, liberty and property from the whims of the popular branches.
In the post-World War II era, Congress has attempted to give away some of its powers to the presidency. For example, even though the Constitution declares that only Congress can spend federal dollars, it has often appropriated funds for the president to spend as he sees fit — and presidents in turn have often delegated those spending decisions to folks whom they have hired.
As well, modern presidents have started dozens of wars without congressional declarations of war, and Congress has looked the other way. Congress even permits the president to raise taxes — so long as he calls them tariffs — and declare an emergency of his own making.
Can the Congress constitutionally give away some of its powers to the president? The short answer is: NO.
The longer answer is far more complex as, unless a proper case is properly before the court, there is no mechanism to prevent this transfer of power. Justice Scalia steadfastly maintained that delegated powers cannot be redelegated.
The purpose of the separation of powers is not to enhance the hegemony of each branch of government. Rather, it is to safeguard personal liberty by preventing one branch from dominating either of the other two.
Preventing Tyranny
Checks and Balances – a view of the U.S. Capitol from the U.S. Supreme Court in Washington, D.C. (debaird/Flickr/Wikimedia Commons/CC BY-SA 2.0)
Stated differently, its purpose is to prevent tyranny.
There are numerous other structural constitutional limitations on the government. Thus, for example, the First Amendment does not create the freedoms of speech and the press; rather it bars the government from interfering with these preexisting rights.
As well, the Fifth Amendment guarantees due process whenever the government seeks the life, liberty or property of any person, citizen or not. Due process, in this context, means a fair hearing before a neutral independent judge who has no interest in the outcome of the case. Due process presumes that if the process is fair and just, the outcome will be respected and followed.
Can Congress or the president punish speech or deny due process? The textbook answer to this question is a resounding: NO. But history is replete with examples of presidents, from John Adams to Donald Trump, complying with statutes that purport to enable them to punish speech or deny due process.
For example, in 1798, Congress made it a crime to criticize the government’s foreign policy. That law was clearly unconstitutional, yet the Adams administration had folks prosecuted and upon conviction incarcerated for speech. After three years, Congress repealed the law. Some of the same folks who had ratified the First Amendment trampled it.
Congress has also authorized the secretary of state to deny permanent resident status to persons already peacefully in the U.S. possessing valid visas, based on their speech. This, too, is unconstitutional as it directly violates the First Amendment — and when the person is deported without due process, the Fifth Amendment as well.
These amendments have deep-rooted premises and values that they protect. The premise of the First Amendment, the premise of the Constitution itself, the premise of liberal democracies is the inescapable lesson of history that limited government in a free society only works when everyone is free to speak their minds and no one need fear masked men grabbing them in their homes, on a public street or airport, and shipping them off to a hell hole in Louisiana or El Salvador.
Until now.
Now, these are real cases that are being litigated today. Congress violated the separation of powers, and the First and Fifth amendments when it permitted deportation because of speech. It permitted trials before immigration judges, who are not neutral life-tenured judges, but rather stooges who work for the prosecutor, who is the secretary of homeland security. The president often deports without hearings.
All confinement and restraint is a denial of natural rights — to speak and to move about freely. The premise of the Fifth Amendment is that no government can be trusted to deny rights for any reason — no matter how dangerous it claims the defendant may be — without a trial at which the government must prove fault before an independent judge. This week, without a hearing, the feds admitted they sent the wrong person to be tortured in El Salvador.
The president claims he has a mandate to rid the country of immigrants whose speech he and his benefactors hate and fear, and he complains that the Constitution is an impediment. The government has no business evaluating the content of speech.
And the Constitution is an intentional impediment to tyranny. No mandate, no matter how one-sided — even all persons in the country but one — can justify trampling even one person’s natural rights.
Do Congress and the president take the Constitution seriously? The answer is obvious.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
Published by permission of the author.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
Dears in the Headlights of a Fantasy!
Adjudging forthrightly.
Question: On what planet, in what era, is the Judge living?
“The short answer is”: Judgement itself, being subjective: holding libertarian values in a totalitarian, supremacist culture.
Long and contradictory digressions don’t really jive with a particular reality, as it is, in fact!
Intent and Reality are like oil and water.
They require an emulsifier to produce a more adequate, more equitable – fairer dispersion of the resources of power between them.
Apparently, the Judge is still insistent on staying attuned to the era of the cultural crafters of their Constitution; as the individual elites they actually were at the time of their colonialist ‘crafty’ mores for instituting a morally supremacist ‘conventional’ document; now being wholly shredded by those self-same aristocratic elites, and as previously, for their own ends.
His seemingly blind faith belief in limiting government, smacks of the same Libertarianism that the unelected DOGE Minister of Systematic Privatization of government, Musk ascribes to.
The Judge’s motto is “buy gold… buy gold, I do”!
The “separation of powers” in reality means stripping the people of their power, and further cramming it deeper into the pockets of the plutocratic oligarchs.
Citing the late Supreme Court Justice, Antonin Scalia, stating “the most freedom-enhancing aspect of the (Constitution)” casts a sharp light on the interpretation of the word freedom; for whom and how it actually translates in realty for all of us ‘Others’ who, in the real world, have had to exist from paycheck to paycheck, when there was one, as the winds of change were blowing gales, in our faces.
How is James Madison’s ‘brainchild’ working for us – the contemporary majority, as far as the “core values” of a purportedly more ethical and moral society of a long bygone era are concerned?
Transparency!
With eyes wide open, it’s quite clear how transparent the 45th+47th ‘bleeder’ (a person who drains others of money, resources, etc.) is
I have read about a case in the 90’s, ” The Los Angeles Eight” which is supposed to have been a huge win for Freedom of Speech. I have only seen it in a comments section. They tried to deport law abiding Palestinian immigrants, and it was ruled they have First Amendment rights. It dragged on for years.
Well if no one even remembers what these courts decide 20-30 years later, and they just do the same ol thing all over again anyway, is that not a waste of funds ? What is the point of all these courts and these hearings and trials ? It seems they rarely decide anything in our best interest, and when they do, it is just conveniently forgotten, like in this “Los Angeles Eight”.
So I think I must be missing something here, at least I hope I am. Does anyone know?
Thanks for this article.
They were arrested in 1987.
hxxps://merip.org/1997/03/ten-years-of-the-los-angeles-eight-deportation-case/
It appears that a lot of people are going to die
in order to reclaim our rights and set this country
to where it is intended to be, according to what
our forefathers created.
Otherwise, we are going to be a world of slaves.
Do you have anything you would die for?
The question is, as always, when violence is advocated for, who is going to do the dying, the killing, and who will make the money? I assume you are willing to be the first of those “going to die”? That’s very “patriotic” of you.
Speaking of dying, tens of thousands of Palestinians, mostly women and children, are being slaughtered. This is all paid for by our public resources. Very few notice or seem to care, and those who do are persecuted.
So, Kristi’s into half naked men in cages? Travels a long way on the taxpayer dime to go see them. Someone should inform to his majesty, the Great and Powerful Doge.
And its an approved, officially released having passed muster, blessed by the boss herself photo.
And yes, she is very proud of herself.
(Photo also taxpayer funded)
The American Dream doesn’t have anything to do with Mothers, Fruit Pies, or autos with that New Lemon Smell.
The American Dream was that nothing could be taken away from a person, not life, not liberty, not even mere possessions, without due process. The American Dream was that everyone stood equal before the law, the poorest beggar and the richest mega-donor, and even government officials.
We deported a football player for having a tattoo of the Real Madrid football club that wins world championships like the Yankees. I forget how many. The logo, of what was I believe once the Royal Club in the Royal Capital of Spain, includes a crown. ICE officials were deporting sheerly on tattoos, and something on their cheat sheet said “crowns.” So, now this man’s family is trying to find out if he’s still alive in the El Salvador camps. Due process is a chance at a fair hearing to say “hey, its a football club emblem!” Due process means more proof presented than a tattoo. And it dang sure has to mean that a plane turns around when a judge rules against the government officials and orders the plane to turn around.
The Right had abandoned this back in the era of Joe McCarthy and Richard Nixon. The Left gave up opposition with the Clintons and the Gores and their desire to have a Democratic Party with more money that the Republicans. Even the opposition to the centrists gave up these basics of the American Dream when they focused on Identity. It sure didn’t go well with Reparations nor quotas nor the desire to shut down opponent’s speech. And the voters went along. As long as they got some slick TV ads, they didn’t care. Dr. Pavlov’s students had them salivating on command.
Americans forgot what made them special. Americans forgot their Dream. Americans are now essentially anti-American, as they oppose the American Dream (but still adore that New Lemon Smell). Now they are going to be just another European authoritarian society. Dust to dust.
I don’t know if the Judge ever listened to the poetry of Roger Waters on his way to becoming a Libertarian judge.
“Haven’t you heard it’s a battle of words
The poster bearer cried.
Listen son, said the man with the gun
There’s room for you inside.”
-“Us and Them”, Dark Side of the Moon, 1973. .. (52 years ago).
Reminiscent of Nazi Germany’s Gestapo.
Powerful interests have invented ways to undermine our constitutional rights over many decades. Judges’ orders are being brazenly ignored by the Trump administration. So how do we enforce the law on a lawless executive when congress has no problem with the lawless behavior?
Power to the People. Or, as Patty Smith sings it, The People Have the Power.
Both are synonymous with democracy.
“Plenary power” in the context of presidential authority refers to complete and absolute power over a specific area, such as immigration or foreign affairs, with no limitations, though constitutionally limited.
As the Chief Magistrate, the President has the authority to determine the validity of any claim of asylum made by an illegal alien when apprehended, given the fact that they chose to violate the law and enter America outside a lawful point of entry while intentionally not seeking asylum legitimately.
The judge in this case is shredding the Constitution while overstepping his authority and should be removed from the bench.
But in the cases considered in the article the two people apprehended either had a green card or a student visa and neither were asylum seekers.
Dog killer
hXXps://www.theguardian.com/books/2024/apr/26/trump-kristi-noem-shot-dog-and-goat-book