Due Process Under Siege: Andrew Weissmann on Immigration, the Courts, and Executive Overreach
JUDJ-Prepared Summary from May 14, 2025 | The Critical Quest for Presidential Accountability. The views and opinions expressed in this blog are those of the speaker.
In a recent America at a Crossroads discussion, Andrew Weissmann—a former top Justice Department official, legal analyst for MSNBC, and co-host of the Main Justice podcast—unpacked how the rule of law is being tested by immigration policy, presidential power, and executive defiance of court orders. With deep experience as a prosecutor and now as a professor at NYU School of Law, Weissmann warned that the justice system is being pushed to its limits by an administration that often treats constitutional protections as optional.
Immigration and the Attack on Due Process
Weissmann took aim at the rhetoric and policy positions of President Trump and advisor Stephen Miller, both of whom have downplayed the right to due process for immigrants and non-citizens. In a televised interview, Trump twice said he didn’t know whether due process applied to everyone in the U.S.—a statement Weissmann called deeply disturbing and legally incorrect.
“This isn’t just historical theory,” Weissmann said, citing a recent Supreme Court decision—unanimously agreed upon by conservative and liberal justices—that affirmed due process protections for those deported to El Salvador. The fact that the administration continues to defy these rulings shows just how far it has strayed from basic constitutional principles, he argued.
Executive Power and Manufactured Emergencies
Turning to the misuse of emergency powers, Weissmann criticized Miller’s assertion that habeas corpus—the right to challenge unlawful detention—can be suspended during an “invasion” from migrants. “That’s not how our Constitution works,” Weissmann explained, noting that the power to suspend habeas corpus lies with Congress, not the executive branch, and only in cases of rebellion or invasion—and even then, only when the public safety requires it.
He cited historical warnings from Justice Robert Jackson, who, in the famous Youngstown concurrence, cautioned against executives inventing emergencies to bypass legal checks. “That warning from 1952 feels eerily relevant today,” Weissmann said.
The Citizenship Fight: What’s Really at Stake?
Weissmann clarified widespread confusion about an upcoming Supreme Court case often mischaracterized as a challenge to birthright citizenship. While the administration’s radical reinterpretation of the 14th Amendment is indeed troubling, the case before the Court centers on whether a single district judge can issue a nationwide injunction.
He warned that restricting nationwide injunctions could lead to a legal “whack-a-mole,” where constitutional rights vary state by state. “Imagine being born in Florida and having different citizenship rights than someone born in New York,” he said. “The chaos and cruelty of that would be enormous.”
Undermining the Judiciary by Design
Weissmann described a systematic effort by the executive branch to evade judicial authority—such as moving immigrants between jurisdictions to avoid court orders, or outright ignoring injunctions. “This kind of behavior wasn’t tolerated under past Republican or Democratic administrations,” he said. “Now it’s becoming normalized.”
He also condemned personal attacks on judges by top officials like Attorney General Pam Bondi, arguing that such rhetoric increases the risk of violence and erodes public trust in the judiciary.
Rule of Law Depends on People
While the legal landscape looks bleak, Weissmann ended on a hopeful note. “There are still judges, lawyers, and public servants acting with integrity,” he said, citing figures like Judge Wilkinson and Justice Amy Coney Barrett who have pushed back against executive overreach.
But he also warned that law is only as strong as the public’s commitment to it. “We’re seeing just how fragile our norms are,” he said. “Upholding the rule of law takes more than institutions—it takes people who care enough to defend it.”
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.