In the first months of his administration, President Donald Trump repeatedly threatened due process, a fundamental principle enshrined in the U.S. Constitution. His attacks have spanned from the arbitrary use of the Alien Enemies Act to deport legal residents, to the unlawful detention of students.

For years due process has protected us from such unfair, unlawful and unequal treatment. But what is due process? Why do we all have a stake in defending it?

It’s in the Constitution that the government shall not “deprive any person of life, liberty, or property without due process of law.” This legal guarantee takes two forms: procedural due process and substantive due process.

• Procedural due process means that the government is required to follow a set of procedures when it attempts to deprive someone of their life, liberty, or property. This means that the government must tell you what’s happening, quickly provide you an opportunity to be heard in court, and provide you with a neutral decision-maker (i.e. a court of law).
• Substantive due process means that the government must give a compelling reason before infringing upon certain fundamental rights, no matter what process is followed.

In practice, procedural due process means that the government must give people a chance to defend themselves in a fair hearing before infringing on their rights. It is not merely a formality or an amorphous part of the law. It is a cornerstone of American justice. Our country was founded on the idea that the government cannot take away your rights and liberties arbitrarily and that everyone has a right to defend themselves in court.

Not legally. The Fifth and Fourteenth Amendments explicitly state that no person shall be deprived of life, liberty, or property without due process of law under any circumstance.

The government is required to respect due process before it can take actions that affect a person's life, liberty, or property. This includes:

• Informing you of what is happening, such as why you’ve been arrested
• Providing you with a chance to challenge any accusations made against you
• Providing you with a fair and impartial jury of your peers should you go to trial

These rules are written in the Constitution and apply to everyone – regardless of origin, political beliefs, financial status or criminal status.

At a high level, due process is the foundation of our legal system. We are not a monarchy or a dictatorship, meaning that power is derived from the people. The president is not allowed to disregard the Constitution and laws passed by the people’s representatives when dispensing justice.

At an individual level, due process protects us from arbitrary judgement by the government. Whether someone is fighting an eviction, seeking asylum, defending against criminal charges, or protecting custody of their children, we all rely on due process every time we engage with the justice system. Without due process, the government could unlawfully deport people, jail people for lengthy periods of time without a fair trial, demand money, seize homes or otherwise harm people without giving them a chance to defend themselves.

President Trump has spent the first 100 days of his second presidency pushing unconstitutional executive orders and actions and targeting judges, private law firms, public interest firms, nonprofits, and individual lawyers. Taken together, these attacks are a direct affront to the due process protections enshrined in the Constitution.

Expedited deportations: The Trump administration has illegally fast-tracked deportations without fair legal processes. For example, Kilmar Abrego Garcia was shipped to a torture prison in El Salvador in the middle of the night without notice or a hearing, and in spite of a court order prohibiting his deportation. This is a clear violation of due process and the rights owed to all individuals. His story is one of many who have been banished without adequate justification.

Arrests of outspoken students: The Trump administration has directed masked ICE officers to arrest multiple students and professors for their First Amendment protected speech. This is a clear violation of due process, and a warning sign of authoritarianism that people across the political spectrum have condemned. In a free society, plainclothes officers cannot pull us into unmarked vehicles at a moment’s notice.

There are countless other examples, including the most recent suggestion by Deputy Chief of Staff Stephen Miller that the government might suspend habeas corpus,which guarantees that people can challenge their unlawful detention by the government. This and other threats to our country’s commitment to due process put us in precarious positions.

The government does not get to pick and choose who deserves the protections enshrined in the Constitution. Allowing the Trump administration to do so is a slippery slope that leaves us all vulnerable. Lawyers, students, immigrants, and members of civil society will play a crucial role in checking the worst inclinations of this Trump administration. We must meet this moment with fierce and unwavering resistance in the courts, in the streets, and in statehouses across the country. Our Constitution demands it and our democracy depends on it.

The Supreme Court’s docket this term includes many of the complex issues American society is currently facing, including: immigration, free speech, religious liberty, LGBTQ rights and voting rights.

The ACLU has served as counsel or filed friend-of-the-court briefs in all of the cases addressing these hot-button issues. In addition to its official docket, the court will also decide cases on its “shadow docket,” or emergency docket, that touch on contentious issues like immigration enforcement and birthright citizenship.

Below, read more about key cases on the court’s main and emergency docket, including what they mean for the future of our civil liberties.

The Facts: The question in this case is whether Tennessee’s law banning gender-affirming hormone therapies for transgender minors violates the Equal Protection Clause of the US Constitution.

Our Argument: The ACLU argues that Tennessee’s ban is a clear example of discrimination on the basis of sex and transgender status making it a violation of the Equal Protection Clause of the 14th Amendment of the Constitution.

We made a similar argument in 2020 when, alongside other legal advocates, we successfully argued in front of the Supreme Court on behalf of LGBTQ clients fired because of their sexual orientation and gender identity, including a transgender woman fired from her job at a Michigan funeral home. In a 6-3 ruling, the Supreme Court ruled in favor of LGBTQ workers and found “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” and therefore discrimination against LGBTQ workers was impermissible sex discrimination under Title VII, the federal law prohibiting sex discrimination in employment.

Why it Matters: In this case, the Supreme Court must now decide whether states can ban medical treatment for transgender youth with gender dysphoria, but not whether they must. If the court finds Tennessee’s law constitutional, the immediate impact on access to these treatments will be limited to the two states where the bans are already in effect.

Importantly, when arguing against transgender people and their families, states with bans like Tennessee’s have relied heavily on the Supreme Court’s opinion Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and allowed states to ban abortion. U.S. v. Skrmetti will be a major test of how far the court is willing to stretch Dobbs to allow states to ban other health care. The court’s ruling could serve as a stepping stone towards further limiting access to abortion, IVF, and birth control.

The Facts: The court must decide if a Texas law that forces people to share personally identifying information — potentially including a picture of themselves, biometric scans, or their government ID — before they can access websites that host some amount of sexual content is a violation of the First Amendment.

Our Argument: This law threatens all of our First Amendment rights, regardless of age. It reflects the government’s distaste for specific topics and messages–those about sex–and so it has to pass a very strict test to satisfy the First Amendment. The government argues that the law just has to be reasonable since its goal is to protect kids, but accepting that argument could open the door to all manner of speech regulation – and it doesn’t even actually protect kids. Pornography is often the canary in the coalmine when it comes to protecting free speech.

While proponents of age-verification laws liken them to showing your ID before buying pornography in person, the reality of online age verification is much more invasive. In the physical world, age-gating is easy, but the online version of this process is far more burdensome, time-consuming, and risky.

Why it Matters: Texas’s age-verification law is another insidious attempt to dismantle our right to access information — and to express ourselves freely.

Forcing people to identify themselves to access information online threatens the internet’s very spirit, and it compromises our rights to privacy and free speech without preventing children from accessing porn. In an age marked by data breaches and digital surveillance, linking your identity to your browsing history will inevitably discourage speech—and if that is deemed okay for sexual content, it could keep spreading to any number of other topics or mediums. Several states have already passed similar laws restricting access to social media for minors, and if those regulations continue to pass, the future of the internet looks a lot more fenced in.

ACLU / Yousef Sindi

The Facts: This case asks whether a Maryland school district’s refusal to allow parents to opt their children out of an LGBTQ-inclusive English curriculum a violation of parents’ free-speech, free-exercise, and substantive-due-process rights under the U.S. Constitution and Maryland law.

Our Argument: In a friend-of-the-court brief, we argue that the “no opt-out” policy does not violate parents’ free exercise First Amendment rights. Although the school district previously allowed opt-outs for any reason from portions of the English Language Arts curriculum featuring storybooks with LGBTQ characters and themes, the growing number of opt-outs proved to be disruptive and divisive. Teachers were forced to divert time and resources to create alternative lessons for students who opted out, and many students simply did not attend school at all for the day. In addition, the opt-outs stigmatized LGBTQ students and those with LGBTQ family members.

Why it Matters: Religious liberty is fundamentally important, but it doesn’t force public schools to exempt students from secular lessons that don’t align with their families’ religious views. Mandating opt-outs would wreak havoc on public schools, tying their hands on basic curricular decisions, stoking divisiveness and disruption, and undermining a core purpose of public education — to prepare students to live in our pluralistic society.

ACLU / Janie Osborne

The Facts: In this case, the Supreme Court will determine whether Louisiana's congressional map, which now includes two majority-Black districts, constitutes a racial gerrymander.

Our Argument: With such a significant Black population in Louisiana, it's imperative that the state’s congressional districts mirror this demographic reality to ensure fair representation. Simply put, the new map allows Black voters to elect candidates who genuinely represent their communities' concerns and interests. This aligns with the Voting Rights Act, which mandates that electoral maps not dilute the voting power of communities of color.

Why it Matters: Louisiana has a long history of racial discrimination in voting, including practices like literacy tests and poll taxes that targeted and disenfranchised Black voters.

Establishing a second majority-Black district ensures that the political landscape reflects Louisiana's diverse population -- of which Black people make up one third -- and is simply put: fair representation. Louisiana’s actions should set a precedent and inspire similar moves toward improving democratic processes in other states.

While not “official” Supreme Court cases, the so-called shadow docket, or emergency docket, cases are brought to the court by a state, or a company, or a person who has lost in the lower courts and asks the Supreme Court to block the lower court's order while the case proceeds through the appeals process. The shadow docket is the way many cases today are decided, without full briefing or oral argument, and without any written opinion.

The Trump administration has utilized the shadow docket to address contentious issues – notably immigration enforcement and birthright citizenship – raising alarm over whether the administration is attempting to circumvent the rule of law to enforce unlawful and harmful policies.

A major case on the shadow docket involved Kilmar Armando Abrego Garcia, a Maryland man wrongfully deported to El Salvador. The court largely upheld a district judge’s order for his return. Other immigration-related shadow docket cases include Trump’s use of the Alien Enemies Act to deport Venezuelan detainees to El Salvador. The Supreme Court intervened to temporarily block these deportations. The court also heard arguments in a case challenging Trump’s executive order to end birthright citizenship for children of undocumented immigrants. The administration seeks to limit nationwide blocks on use of the law from lower courts, requesting they apply only to the parties involved. The court has yet to issue any rulings in this case.

This week at the ACLU of Maine: Updates on our lawsuit against illegal immigration detention in Maine, covering the Supreme Court term with the community in Machias, and preparing for Pride throughout Maine!

Hearing Scheduled for Habeas Case Challenging Illegal Immigration Detention of Maine Man

A lot has happened since we filed a habeas petition last week on behalf of a Maine man being held indefinitely by U.S. Immigration and Customs Enforcement (ICE). Shortly after filing, the government transferred our client, Eyidi Ambila, from Cumberland County Jail (CCJ) in Portland to a jail in Burlington, Massachusetts, and slated him for "imminent removal" to the Democratic Republic of the Congo. Eyidi is essentially stateless; although born in the DRC, the country has no record of him and has refused to issue him travel documents in the past.

That same day, a federal judge in Maine issued an emergency ruling that prevented the federal government from sending Mr. Ambila out of the country while the case proceeds. This is not the final ruling on the matter. Mr. Ambila has been transferred back to CCJ while we wait for a judge to rule on the substantive legal arguments in our case – but he could be moved again at any time. The government must submit a response to our lawsuit by May 30. A hearing is tentatively scheduled for June 6. In the meantime, Mr. Ambila is continuing to be held indefinitely by ICE.

Read our press release about the case here. Read more about due process and habeas corpus here.

ACLU of Maine Travels to Machias to Talk Supreme Court Decisions

On Thursday, part of our legal team traveled to Machias to meet with community members at the Porter Memorial Library. Our legal director, Carol Garvan, presented on the Supreme Court's 2025 term, the decisions that have already been issued this term, and the major issues that the court has yet to decide.

The event was well-attended and the discussion was rich and spirited! We had an amazing time and cannot wait to continue meeting with community members at similar events around the state. Keep an eye on our events page and subscribe to receive email updates from the ACLU of Maine to be notified about events near you! 

Maine Fungi Fest and the Failed War on Drugs

Our policy director, Michael Kebede, joined a panel discussion on Saturday morning about the cost of America's failed War on Drugs. He the need for a public health response to the deadly overdose epidemic instead of the continued policies of punishment and incarceration.

Too many who want treatment for substance use disorder cannot get the help they need. Mainers in all parts of the state need paths to seek support and thrive on their own terms. Criminalizing a health condition creates barriers to recovery, weakens communities, and harms the economy.

Celebrate Pride with Us!

We are participating in three Pride events around Maine in June. We'll be tabling at Pride festivals in Hallowell (6/7) and Bangor (6/28), and marching in the parade at Portland Pride on June 21.

All three of these events are on our events page with more details. In the coming days, we'll post a sign-up form for people who wish to march with us in the Portland parade. Keep an eye on the Portland Pride event page and on an email we're sending out to subscribers next week with more details. 

We hope to see you there! 

Relevant Reads: 

• Portland Press Herald: Judge halts deportation of Maine resident who filed complaint over wrongful detention
• WGME: Advocates worry for Maine's international students amid Harvard's fight with White House
• Bangor Daily News: Penobscot County Jail inmates without lawyers could be released next month