What on earth is due process?

Or rather, what in the United States is due process? Where did the idea come from? Does everyone agree on what it is and what it means? The answer is surely no—or at least seems to be no. Today, the answer is often ‘it depends’—due process is defined in ways that advance individual or political interests. Can that mean the meaning is only situational?

Sir William Blackstone, the renowned eighteenth-century English jurist, discussed the concept of due process of law—though not always using that exact phrase—in his seminal work, Commentaries on the Laws of England (1765–1769). He treated it primarily under the idea of “the law of the land,” which was a key legal term inherited from the Magna Carta.

In Chapter 7, during his discussion of a king’s authority, Blackstone makes a definitional reference to due process, citing a decree by Queen Anne that “she could inflict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land.”

And in Book 1, Chapter 1, Blackstone refers explicitly to “due process of law,” noting, “And it is enacted . . . that no man shall be forejudged of life or limb, contrary to the great charter and the law of the land: and again . . . that no man shall be put to death, without being brought to answer by due process of law.”

This is a direct reference to the Magna Carta (1215, Clause 39), which said:

“No free man shall be seized or imprisoned . . . except by the lawful judgment of his equals or by the law of the land.”

Ah, but who is a “free man”?

When Blackstone—and before him, the Magna Carta—wrote “no free man shall be seized or imprisoned,” the term “free man” had a very specific legal and social meaning in medieval and early modern England.

In his Commentaries, Blackstone echoes the Magna Carta’s language when explaining personal liberties. In that context, “free man” was understood to mean any subject of the king who enjoyed civil liberties and legal protections—essentially, anyone who was not a slave or serf and who was recognized as having full legal personhood.

By Blackstone’s time in the eighteenth century, serfdom had largely disappeared in England, and so “free man” had become more of a general term for any English subject entitled to the protections of law.

Thus, Blackstone was using “free man” in a broad, inclusive sense—essentially meaning any citizen with legal rights.

That would seem to exclude illegal immigrants, which wouldn’t mean they could be hanged without cause, but would imply that they were not entitled to all the niceties of due process.

In Blackstone’s time, there were also two well-known maxims:

“Lex non cogit ad impossibilia” or “The law does not compel the impossible.”

and

“Lex nil facit frustra, nil jubet frustra” or “The law does nothing and commands nothing in vain.”

Blackstone stressed that legal rules must be rational and enforceable. He emphasized that law is meant to promote justice and that unjust or impractical laws undermine both their intent and public confidence.

What does all that tell us? It tells us that there is no historical need to provide a hearing to each and every immigrant who came into this country illegally during the Biden presidency.

A quick look at the numbers shows the impossibility of granting each of them a “due process” hearing.

Approximately 13 million people entered the U.S. illegally during Biden’s administration.

A January 2025 Congressional Research Service report finds that the Department of Justice Executive Office for Immigration Review (EOIR) currently employs 735 judges, almost triple the number from a decade ago, with 642 total courtrooms across the country.

At the end of Fiscal Year 2024, the EOIR had processed over 700,000 cases (the largest number in agency history) and yet still had a backlog of almost 4 million additional cases!

This results in an average pending caseload of 5,331 per judge.

A 2014 Washington Post article described how, even at that time, one federal judge in Arlington, Virginia, needed to process an immigration case every seven minutes to keep up with his quota.

In 2024, it took a median of 46 days to process non-review cases (cases involving removal, deportation, exclusion, asylum-only, or withholding-only).

Before any deportation can occur, an immigrant appears before a judge in a “master hearing,” a public hearing where multiple defendants appear before the same judge.

According to the law firm EMP Law, a master hearing in immigration court is “usually quick, often lasting between five and twenty minutes, depending on the circumstances.”

After the master hearing comes an individual hearing, in which a defendant can present their full defense and reasons for contesting deportation.

According to the legal publisher Nolo, an individual hearing is typically scheduled to last between one and four hours, and “in some cases, the testimony and evidence presentation can take much longer than four hours.”

An individual hearing is “usually the last hearing before the judge makes a final decision” about an immigration case, per Curbelo Law.

Assuming that, on average, a judge can successfully process an immigration case from start to finish in 5 hours (15 minutes for a master hearing, 2 hours prep time, and ~3 hours for an individual hearing):

For the 735 current immigration judges to process each of the 13 million illegals who entered the country during Biden’s term, it would take:

Thirteen million cases divided by 735 judges equals 17,687 cases per judge.

17,687 cases per judge times 5 hours equals 88,435 hours per judge.

For context, it would take a judge working 50 hours per week, 50 weeks a year (2,500 hours total), doing nothing but processing immigration cases, over 35 years to process that many illegal immigrants.

That’s ridiculous! Due process cannot mean that all the illegal immigrants get a full hearing—of the kind the Democrats want to give them for the purpose of paralyzing the effort to deport them.

As we learned in Latin class, “Lex nil facit frustra, nil jubet frustra.”

Pass it on.

Daniel Oliver is Chairman Emeritus of the Board of the Education and Research Institute and a Director of Pacific Research Institute for Public Policy in San Francisco. In addition to serving as Chairman of the Federal Trade Commission under President Reagan, he was Executive Editor and subsequently Chairman of the Board of William F. Buckley Jr.’s National Review.

Email Daniel Oliver at Daniel.Oliver@TheCandidAmerican.com.