The D.C. Circuit of Appeals gets the Constitution right on expedited removal
Congress put expedited removal on the books in 1996. Bill Clinton signed it. For nearly three decades, it has authorized immigration officers to deport certain unauthorized entrants without a full court hearing. On Tuesday, a federal appeals court confirmed that the Trump administration's expansion of that authority is constitutional. The ruling wasn't close on the merits. What's remarkable is that it needed to be litigated at all.
The D.C. Circuit of Appeals, in a 2-1 decision, reversed a lower court order blocking the administration's January 2025 expansion of expedited removal. Before this year, the process applied only near the border and only to recent entrants who couldn't prove two weeks of continuous presence. The expansion extends it nationwide and raises that threshold to two years. Two Trump-appointed judges—Justin Walker and Neomi Rao—found the policy provides constitutionally adequate notice and a meaningful opportunity to be heard. Obama-appointed Judge Robert Wilkins dissented.
The dissent's core objection: the policy doesn't require officers to inform migrants of the two-year defense, so migrants might not raise it. Follow that logic to its conclusion. It means a federal enforcement agency must counsel detainees on the defenses available to them before proceeding with enforcement. No agency operates that way — not the SEC, not the IRS, not local law enforcement. The appellate majority said as much directly: requiring officers to provide that information "would require immigration officers to provide what amounts to legal advice."
The constitutional baseline was settled years ago. In DHS v. Thuraissigiam (2020), the Supreme Court held that expedited removal satisfies due process for aliens who haven't effected a lawful entry. The Constitution requires notice and an opportunity to be heard — not a guided tour of immigration law. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 gave DHS the statutory authority. The Trump administration expanded the program's geographic scope within that existing grant. If the ACLU wants to challenge the underlying scheme, the Supreme Court has already answered that question.
Recommended
I've spent 30 years advising clients through regulatory enforcement. When the SEC issues a subpoena, it doesn't attach a memo on how to challenge it. When the IRS audits a return, it doesn't volunteer the statute of limitations defenses the taxpayer might raise. Enforcement agencies follow their own procedures — they don't pre-litigate against themselves. The lower court judge who called the government's procedures "woefully inadequate" wasn't applying the due process doctrine. She was substituting her policy preferences for congressional judgment on a statute Congress wrote deliberately and a president signed into law.
Context: the administration has been running this expansion against a border that logged more than 2.4 million encounters in fiscal year 2024. Full immigration court proceedings for every unauthorized entrant would take years and require resources the system doesn't have. The two-year continuous presence threshold is a genuine defense for long-term residents — not a technicality designed to trap people who've built lives here. It's designed to reach the people who crossed recently and are claiming otherwise.
Meanwhile, congressional Democrats have offered the country a counterargument in action. Rather than proposing legislation, debating enforcement policy, or articulating what a functioning immigration system should look like, several spent recent weeks flying to El Salvador to have drinks with deported Tren de Aragua gang members and joining protests outside detention facilities. The party that once competed seriously on border security has decided that enforcement itself is the offense. Voters have noticed.
The ACLU says it's "exploring next steps" — litigation shorthand for either a certiorari petition or a new filing in a friendlier circuit. Given Thuraissigiam's controlling force, neither path is promising. DHS's top lawyer said Tuesday's order "vindicated our decision to apply the law as written." That's accurate. It's also the minimum standard for what a federal agency should be doing.
Expedited removal has been the law for about 29 years. Tuesday's ruling didn't create new authority — it stopped a district court from erasing authority Congress granted. Due process is a real protection. It doesn't require the government to argue both sides.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.
Editor’s Note: Do you enjoy Townhall’s conservative reporting that takes on the radical Left and woke media? Support our work so that we can continue to bring you the truth.
Join Townhall VIP and use promo code FIGHT to receive 60% off your membership.
Join the conversation as a VIP Member