The Perversion of Due Process: How Activist Judges and NGOs Weaponise the Law to Undermine Border Security, By Chris Knight (Florida)

Here is an example of how hostile elites can pervert even cornerstones of the rule of law to suit their agenda. In the grand tapestry of American constitutionalism, due process stands as a cornerstone — a sacred principle enshrined in the Fifth and Fourteenth Amendments to protect individuals from arbitrary government action. It ensures fairness, notice, and the opportunity to be heard before liberty or property is deprived. From a conservative perspective, this is not just a legal nicety but a reflection of the rule of law, which demands that justice be applied evenly, without favouritism or ideological bias. Yet, in the realm of immigration enforcement, due process has been twisted into something unrecognizable: a tactical weapon wielded by activist judges, progressive NGOs, and open-borders advocates to paralyse agencies like Immigration and Customs Enforcement (ICE), block deportations, and effectively keep US borders porous by design.

This perversion isn't an accident; it's a deliberate strategy that subverts the very intent of the Constitution. Conservatives argue that while due process is essential for citizens and legal residents, its expansive application to illegal immigrants, often at the expense of national sovereignty and public safety, represents a betrayal of the framers' vision. Let's look at this troubling trend, examining how procedural hurdles are erected not to uphold justice, but to advance a radical agenda that prioritises globalism over American interests. Note, the same tactics can be employed in Australia as well.

The Historical Foundation: Due Process as a Shield, Not a Sword

To understand the distortion, we must first recall what due process was meant to be. The Fifth Amendment states: "No person shall... be deprived of life, liberty, or property, without due process of law." This was designed to restrain government overreach, ensuring that even the accused receive fair treatment. Conservatives revere this as part of the broader rule of law, which includes secure borders and the enforcement of duly enacted statutes. Immigration laws, passed by Congress and signed by presidents, are no exception — they reflect the people's will to control who enters and stays in the country.

However, in recent decades, this principle has been co-opted. Beginning with landmark cases like Zadvydas v. Davis (2001), where the Supreme Court limited indefinite detention of deportable aliens, the judiciary has increasingly interpreted due process in ways that hamstring enforcement. What started as reasonable safeguards has evolved into an endless loop of appeals, hearings, and injunctions that delay deportations for years, if not indefinitely. This isn't justice; it's judicial activism masquerading as compassion. Australia faces the same problem, with visa appeals by over-staying students, swamping the Administrative Review Tribunal.

Activist Judges: The Gatekeepers of Open Borders

At the heart of this issue are judges — often appointed by Democratic administrations — who inject their personal ideologies into rulings. Take, for instance, the Ninth Circuit Court of Appeals, notorious among conservatives for its liberal bent. In cases like Jennings v. Rodriguez (2018), the Supreme Court had to reverse lower court decisions that mandated bond hearings for detained immigrants every six months, a requirement that effectively turned detention into a revolving door. Yet, despite such rebukes, district judges continue to issue nationwide injunctions against ICE operations, citing due process violations.

A prime example is the blocking of Trump-era policies like the Migrant Protection Protocols (MPP), or "Remain in Mexico." Activist judges argued that returning asylum seekers to Mexico violated due process, ignoring the program's success in reducing fraudulent claims and border surges. The result? A resurgence of catch-and-release policies under the Biden administration, where migrants are released into the U.S. with mere notices to appear, proceedings that often drag on for years, allowing many to disappear into the shadows.

Conservatives see this as a direct assault on executive authority. The president, through ICE and DHS, has the constitutional duty to enforce immigration laws. When judges overstep, inventing new "rights" for non-citizens, such as expansive habeas corpus reviews or protections against swift removal, they erode the separation of powers. As Justice Antonin Scalia once warned, such activism turns courts into "super-legislatures," imposing policies that voters rejected at the ballot box.

NGOs: The Shadow Enforcers of Procedural Chaos

Compounding judicial overreach are non-governmental organisations (NGOs) like the ACLU and various immigrant rights groups. These entities, often funded by billionaire philanthropists with open-borders agendas, flood the courts with lawsuits designed to exploit procedural loopholes. Their tactic? Argue that every deportation step — from initial detention to final removal — requires exhaustive due process, even for those with criminal records or repeated illegal entries.

Consider the role of NGOs in challenging ICE's use of expedited removal. Under federal law, this allows for quick deportation of recent border crossers without a full hearing. Yet, NGOs routinely file class-action suits claiming due process denials, forcing ICE into resource-draining litigation. In one notorious case, the ACLU sued over the separation of migrant families, leading to injunctions that crippled enforcement efforts. While family unity is a value conservatives hold dear, using it as a pretext to halt deportations of entire groups ignores the incentives it creates for human smuggling and child exploitation at the border.

These organisations don't just litigate; they coach migrants on how to game the system — advising on asylum claims that trigger automatic due process protections, even when claims are meritless. Statistics bear this out: Asylum approval rates plummet when cases are expedited, suggesting that prolonged procedures allow for coaching and delays that favour the applicant over the rule of law. From a conservative lens, this isn't advocacy; it's sabotage, turning due process into a shield for lawbreakers while American taxpayers foot the bill for endless court backlogs.

The Broader Implications: A Threat to National Sovereignty

This weaponisation of due process has dire consequences. Borders aren't mere lines on a map; they're essential to sovereignty, security, and the social compact. When activist judges and NGOs cripple ICE, they invite chaos: increased drug trafficking (fentanyl overdoses have skyrocketed), human trafficking, and strain on public resources. Cities like New York and Chicago, overwhelmed by migrant surges, are Exhibit A in how open borders by judicial fiat harm working-class Americans.

Conservatives argue for reform: Streamline procedures for non-citizens, limit judicial review in immigration matters (as Congress has the plenary power here), and defund NGOs that abuse the system. Restore due process to its original role — protecting the innocent without paralysing enforcement. As Ronald Reagan reminded us, "A nation that cannot control its borders is not a nation." It's time to reclaim the rule of law from those who pervert it.

In conclusion, the transformation of due process from constitutional principle to regime tactic is a profound betrayal. It elevates ideology over security, activism over accountability. Conservatives must push back through legislation, judicial nominations, and public discourse to ensure that justice serves the American people, not undermines them. The border crisis isn't inevitable; it's engineered by the elites.