How has the Supreme Court's interpretation of due process evolved for non-citizens since the 2020 term?
Executive summary
Since the 2020 term the Supreme Court has maintained the longstanding baseline that non‑citizens within U.S. territory are “persons” entitled to some Fifth Amendment protections while simultaneously reaffirming strong deference to the political branches on immigration, producing a mixed record that narrows some judicial review (notably in expedited removals) even as it enforces procedural safeguards like habeas in specific contexts [1] [2] [3].
1. The baseline: Due process attaches to persons, not citizens
The Court’s long‑standing principle that the Due Process Clause protects “persons” within U.S. borders — and thus extends constitutional protection to many non‑citizens — remains integral to analysis and is repeatedly cited in post‑2020 commentary and legal summaries [1] [4].
2. The 2020 term pivot: Thuraissigiam and limits on judicial review
In a key 2020 decision the Court held that an alien detained shortly after entry could not constitutionally challenge a statute that sharply limited judicial review of expedited removal, a ruling that has been read to constrain habeas‑style review for recent entrants and to signal tolerance for streamlined removal processes at the border [2] [1].
3. The Court’s selective policing of process under new pressures
After 2020 the Court has sometimes stepped in to police specific procedures — for example by reaffirming that non‑citizens targeted under the Alien Enemies Act must have an opportunity to challenge detention through habeas — even as it leaves broader policy choices to the executive and Congress [5] [6] [3].
4. Continuity with plenary power and Mezei‑style distinctions
The Court continues to echo earlier holdings that immigration law occupies a sphere of plenary political‑branch authority and that due‑process entitlements can turn on status and circumstance: entrants, admitted noncitizens, and long‑term residents may receive different procedural protections, reflecting the Mezei line and other precedents [7] [8] [4].
5. Practical effect: narrower routes to review but preserved core safeguards
Practically, the post‑2020 pattern narrows some avenues for judicial oversight — especially for expedited proceedings at or near the border — while preserving core judicial tools like habeas in discrete settings and reaffirming that removals require legally sufficient evidence when reviewed [2] [1] [3].
6. Competing narratives and institutional agendas
Advocacy and think‑tank commentary frame the Court’s evolution differently: civil‑liberties groups emphasize the Court’s enforcement of habeas and due process against aggressive removal practices, while conservative commentators stress deference to Congress and the executive and warn against over‑extending constitutional protections in civil immigration proceedings [5] [6] [9].
7. What remains unsettled and why reporting is limited
The available reporting and annotated summaries capture major doctrinal points but do not catalogue every lower‑court fallout or the full slate of cases pending after 2020; therefore conclusions about long‑term trendlines must acknowledge gaps in coverage and the Court’s case‑by‑case approach to due process claims by non‑citizens [4] [10].
8. Bottom line — an incremental, case‑by‑case evolution
Since the 2020 term the Supreme Court’s interpretation of due process for non‑citizens has evolved in an incremental, case‑specific way: it has preserved the baseline that non‑citizens are “persons” with some constitutional protections, limited judicial review in expedited border contexts, and intermittently reasserted procedural safeguards such as habeas when confronted with particular executive actions [1] [2] [5] [3].