JD Vance is a smart fellow. That’s why he’s often infuriating — too smart not to know that the nonsense he spouts is nonsense. Well-framed nonsense, to be sure. Demagoguery, to be effective, has to be well framed: A grandiloquent rationalization for shredding the Constitution has to be pitched as a defense of constitutional principle if, as the speaker intends, the former is to be taken by the listener as the latter. All the while, though, the speaker knows exactly what he’s doing. Vice President Vance issued one of his claptrap-laden diatribes on social media Wednesday, slamming “the media and the far left” who are “weeping over the lack of due process” in the Trump administration’s illegal deportations of people it alleges — probably correctly in most instances — are members of criminal gangs. Vance spotlights Kilmar Armando Abrego Garcia, the illegal alien and Salvadoran national whom — the Trump Justice Department itself has confessed to the Supreme Court — the administration unlawfully deported to El Salvador. It is natural for Vance to dwell on Abrego Garcia. It’s topical, after all, with the administration cruising toward being held in contempt by a federal judge (I should say, yet another federal judge) because it is stonewalling about its flouting of an order, endorsed by the Supreme Court, that it facilitate his return to the United States. It’s an order with which the administration could easily comply but it has decided to ignore. The best explanation is the simplest: Trump intends to illustrate that he has amassed uncheckable power. That is, having extirpated what made the Republican Party conservative and constitutionalist, and with Congress thus no obstacle (at least for the next 21 months), the president wants it known that such constitutional constraints on executive power as courts and due process are no longer operative. That was the point of the vice president’s post: Due process is for whiners, and if you’re “weeping” over its sudden death, you’re the problem. Abrego Garcia is also a natural target for Vance’s bombast because, in the idiocy of modern American politics — the politics of pro-Trump and anti-Trump derangement — Democrats are playing to type. Led by Senator Cory Booker (D., N.J.), some of their 2028 hopefuls (against one of whom Vance plans to be the opposite number) are queueing up for flights to El Salvador. Senator Chris Van Hollen (D., Md.) even hopes for admittance to CECOT, Trump pal Nayib Bukele’s notorious terrorism mega-prison, so he can visit “Kilmar,” the cuddly illegal alien he calls “my constituent.” “Constitutional crisis” is a phrase often invoked and rarely accurate. But now, we actually have one: the evisceration of due process, the justice for all without which we can’t have the liberty in the republic to which we pledge allegiance. But as ever, it is erupting within our clown show. By Vance’s lights, you should feel good about voiding due process because to be opposed necessarily means you are flocking to the pom-pom squad of a man who may very well be a member of the vicious international criminal gang, MS-13 (Mara Salvatrucha) — even if the Trump administration is assiduously misleading the public in claiming that two “courts” have “ruled” that he is. (In point of fact, two immigration tribunals — which are Justice Department components, not Article III judicial courts — ruled in 2019 that Abrego Garcia should be denied bail, not that he is an MS-13 member; he has never been formally accused of, much less convicted of, some MS-13-related crime. The denial of bail was supported, in part, by an unidentified, uncorroborated informant, whom the DOJ “courts” credited. What the administration doesn’t tell you is, subsequently, a third DOJ immigration “court” allowed him to be released, without apparent objection from or appeal by the Trump-45 Justice Department. Since then, the two actual federal courts that have weighed in this month have scoffed at the weakness of the Trump DOJ’s evidence that Abrego Garcia is an MS-13 member. That doesn’t mean he’s not one, just that the feds haven’t proven it.) Vance’s anti-due process position is just as daft as the Democrats’ sudden enthusiasm for Abrego Garcia. In a nutshell, the vice president argues that “Joe Biden allowed 20 million illegal aliens into our country” in violation of our laws; and Trump and Vance were elected “to solve this problem”; ergo, the Trump administration’s reimagining of due process — i.e., its violation of the laws — must be indulged since there is no other practical possibility of deporting “at least a few million people a year.” It wouldn’t be a combative Vance post without hyperbole: The 20 million figure is a gross exaggeration. It would be more accurate to say that, after President Biden’s disastrous border collapse and non-enforcement policies (which, here on what the vice president would have you believe is “the far left,” we have inveighed against for four years), there are now probably a total of 20 million illegal aliens in the country (though, thankfully, a self-deportation trend may be emerging due to strong Trump/Vance border security and immigration enforcement policies). The Republican-controlled House Homeland Security Committee estimates that border agents “encountered” about 10.8 million illegal aliens during the Biden years. A high percentage of those, but not all of them, were admitted. The committee does not include “got-aways” — aliens who evaded “encounter” as they snuck in; Andrew Arthur of the Center for Immigration Studies (CIS) has estimated that roughly 860,000 got-aways entered in 2023 alone, and, according to CIS’s Todd Bensman, the four-year figure under Biden can conservatively be pegged at more than 2 million. Through non-enforcement and a variety of illegal “parole” schemes, then, Biden is probably responsible for swelling the illegal-alien population by over 10 million. That’s horrific. There’s no need for Vance to tart it up. Providing a reasonably accurate figure would still have given him a strong case for all the dysfunction he rightly catalogues — “extraordinary burdens” that “overwhelm” “schools, hospitals, housing, and other essential services,” and inexorably result in the entry of some illegal aliens who’ve “committed violent crimes, or facilitated fentanyl and sex trafficking.” Vance took a solemn oath “to bear true faith and allegiance” to the Constitution, which includes the very inconvenient Fifth and 14th Amendment guarantees that no person — not just citizens, but no person — shall “be deprived of life, liberty or property, without due process of law.” He writes, nevertheless: To say the administration must observe “due process” is to beg the question: what process is due is a function of our resources, the public interest, the status of the accused, the proposed punishment, and so many other factors. As the Yale Law alum well knows, that is specious. The executive branch executes the laws enacted by Congress; that is the duty the president swears to “faithfully execute.” What process is due is, first and foremost, a function of congressional statute, since it is primarily the task of the legislature to balance “our resources [and] the public interest,” as well as “the status of the accused” (by which I assume Vance means the illegal-immigrant status of Abrego Garcia, though he is not an “accused” since the Trump administration never actually charged him with a crime) and the “proposed punishment” (presumably this refers to what Vance later describes as “deporting an illegal alien to their [sic] country of origin”). The process that is due to aliens depends on what process Congress has prescribed. Vance doesn’t mention this because the Trump administration is flagrantly violating immigration statutes. It is quite remarkable to find people who railed (and properly so) against the lawlessness of Biden and Obama in usurping Congress’s authority, particularly over immigration law, now arguing that they have a free-floating power to ignore Congress — under the guise of unilaterally determining “what process is due.” Not your job, Mr. Vice President. Turns out the Trump administration and its political base don’t want roll back the excesses of Obama and Biden, they want to be Obama and Biden, just in the pursuit of their contrary objectives. That, inevitably, will ensure that the next Democratic president, probably in 2029 at the rate things are going, will be Obama and Biden cubed. And how strange of Vance to pick Abrego Garcia as the beta test for his newfangled due process. Adopting the habit of Trump officials of making up their own facts as well as their own law, Vance argues that all the administration is doing is returning an illegal alien to his home country (as Secretary of State Rubio claimed this week, what’s “supposed to happen”); since Abrego Garcia is “an MS-13 gang member,” why “demand that he be returned to the United States for a *third* deportation hearing”? Those who argue for such a thing, Vance asserts, are “really saying they want the vast majority of illegal aliens to stay here permanently.” This is so mendacious it’s hard to decide where to begin — even accepting for argument’s sake Vance’s blithe claim that Abrego Garcia is an MS-13 member, which, again, Trump officials chant as a mantra but no one has actually proved. Why is it controversial that the Trump administration, with no due process, snatched Abrego Garcia on the street in Maryland, put him on a plane to El Salvador, and stashed him in a prison that, apart from its reputation for being inhumane, is teeming with Salvadoran gang members? The reason it is controversial is that, based on a congressional statute that prescribes what process is due in the context of removing illegal aliens from the United States, an immigration “judge” from the Justice Department in Trump’s first term ordered in 2019 that Abrego Garcia be given “withholding of removal” to El Salvador, concluding that he had a well-founded fear of persecution from Salvadoran gang members who might kill him if he returned there. Those, of course, would be gang members presently incarcerated in the prison to which the Trump administration has now consigned Abrego Garcia, in the country to which it was illegal to send him. And why is that withholding of removal order still in effect six years later? Not mentioned by Vance is that the first Trump Justice Department not only failed to appeal the 2019 withholding of removal order but then allowed Abrego Garcia to be released from custody so he could live and work in Maryland. And then the second (and current) Trump Justice Department apparently decided not to try to reopen and reverse the 2019 withholding of removal order. In the interim, putting aside the four years of Biden sabotage, in the two years President Trump was in power, his State, Homeland Security, and Justice Departments collectively failed to find a different country that would accept Abrego Garcia, a removable illegal alien who could lawfully have been deported anyplace except El Salvador. That’s why it’s necessary to return Abrego Garcia for what Vance inaccurately describes as “a *third* deportation hearing” — it would actually be a *second* removal hearing. What Vance doesn’t tell you is that Abrego Garcia won the first hearing in the sense that there was (and is) a binding ruling, pursuant to a congressional removal statute, that it would be illegal to deport him to El Salvador. A new hearing is required not because Abrego Garcia’s apologists keep going back to the well; it’s because the Trump administration needs a do-over after losing in the first go-round and failing to either appeal or to take other legally available steps to remove Abrego Garcia. A second hearing is also required because, after the Trump Justice Department conceded to the Supreme Court that the administration had violated the law (which was not credibly deniable), the justices unanimously endorsed the ruling by two lower courts that the administration must facilitate Abrego Garcia’s release from El Salvador and return him to the United States for further proceedings. Vance asks, “What process is due”? As he knows, that’s a judicial determination based on Congress’s immigration laws — Congress writes the laws, and the Judicial Department must “say what the law is” if there is a concrete controversy on that point; the executive is supposed to uphold that arrangement, not upend it. And no, I am not saying I “want the vast majority of illegal aliens to stay here permanently,” as Vance risibly distorts the stance that should be incontestable. I have a long track record as an immigration enforcement hawk, and I called for Biden to be impeached over his border and non-enforcement policies (see, e.g., here, here, and here) — a proposal congressional Republicans, including Vance, had no interest in pursuing. I didn’t urge impeachment because I was posturing or because I delusionally thought the votes were there to impeach and remove Biden. As I said at the time, the credible threat of impeachment articles — and the spotlighting of the border crisis that nationally televised impeachment hearings would cause — might induce Biden to reverse his policies. Because I worked in law enforcement for a long time, I knew those policies would have disastrous consequences because statutory law and due process, coupled with the pathetically inadequate resources Congress provides for immigration enforcement, would make it practically impossible to deport a high percentage of the illegal aliens Biden was ushering in. Like most Americans, I want both the removal of illegal aliens and an executive branch that follows the law. I’m not an idiot. I don’t expect the Trump/Vance administration to deport 20 million illegal aliens in four short years. As to the vast majority of aliens, illegal immigration is a law enforcement problem — crime; it’s not a national security challenge like terrorism. We expect the government to manage crime, not wipe it out or prevent it from happening. The societal crisis we have (Vance is right about strained resources) is not because illegal immigration is innately perilous, but because the government failed to manage it for decades and then allowed it to explode in the last four years — and because one major party does not believe we should have a border. Like most Americans, I expect the Trump administration to aggressively enforce the law — not break the law and pretend that doing so is “the process that is due.” The aim should be to remove the aliens it is practicable to remove legitimately, and in so doing to reverse the incentives of illegal aliens to enter and remain in the United States. That way, new aliens don’t try to come and the ones who are here self-deport in meaningful numbers. The amount of enforcement resources Congress commits to this task is a joke, and the Trump administration (with Republicans at least for now controlling both houses of Congress) should be demanding much more. But for now, the administration should be doing what it can within the law, not flouting the law in a way that will inevitably result in court defeats on many key parts of Trump’s agenda. Vance claims that taking the position I’ve just outlined, the legal aggressive-enforcement position, is “giving the game away.” By that he means one who stakes out this position secretly “doesn’t want border security,” doesn’t “want us to deport the people who’ve come into our country illegally,” wants “a fake legal process,” and hopes for “ratification of Biden’s illegal migrant invasion.” It’s not enough to say that is self-evidently untrue. I’d add, in all sincerity, that it is Vance who is giving the game away. He says we who want the law enforced don’t have a plan for deporting 20 million people — and that’s true, for there is no such four-year plan; there’s just “do the best you can to materially reduce the illegal population, get on a trajectory for bigger reductions over time, and then manage illegal immigration like we manage other ordinary crime.” But to flip it around, Vice President Vance does not tell us what his plan is for rapidly deporting 20 million people. That’s because such a plan cannot include faithfully executing the law. And he knows it.