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I wanted to ask whether US Congress/government can bar a specific foreign country's persons (individuals or firms) from the due process clause if the US government provided substantial evidence in a US court that that country implicitly/explicitly regularly discriminates against US persons in their courts or doesn't apparently reciprocate in due or fair legal process?

The obvious example is China. We know that its judiciary isn't independent and the Chinese Communist Party's (CCP) guidelines are that its judiciary, like anyone else in China, must ultimately serve CCP's interests. So, we have seen multiple examples when Chinese courts used tools like anti-suit injunctions and others to discriminate against US firms. We have seen Chinese firm Tencent block live-streaming of NBA broadcasts which cost NBA $600M, apparently in breach of its contract with NBA, which NBA even can't seek legal remedy to refund. Obviously, it was because of CCP pressure but NBA even can't enforce its contract.

There are other examples, too.

WSJ reported some time ago that CCP forced DuPont to withdraw from a lawsuit if it wanted to avoid arbitrary scrutiny. That cost DuPont a valued chemical tech patent. Further, USTR releases each year foreign trade barrier report in which other cases of US companies' unfair treatment by Chinese courts can be found. So one obviously would then ask why Chinese companies are protected under fair legal process in the US.

Huawei and other Chinese companies regularly sue the US government and exercise their unreciprocated constitutionally rights here in the US. And if any US government agency, presumably State Department, provided solid evidence of unfair discrimination against US companies in China in a US court, can US Congress/government pass a law that bars Chinese companies from fair legal protection in the US? And if US courts block that law, what else can the US government do to secure its economic interests that the US courts would deem acceptable that imposes reciprocity assuming that China doesn't accept third-party jurisdiction in any scenario?

The same can be generalised to any country which doesn't have an implicitly/explicitly independent judiciary, as widely regarded in the international arena.

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  • What prevents the NBA from enforcing its contract or from seeking damages for breach of contract?
    – phoog
    Jul 25 at 9:03
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    There are laws allowing companies to seek redress in the US against foreign companies, which would seem a better solution. There's also the example of anti-SLAPP laws which protect Americans from unjust threats to freedom of speech overseas.
    – Stuart F
    Jul 25 at 9:48

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No

The right to Due Process is a personal right of anyone who may come before a US court, or interact with an agency of any US government, Federal, State, or local. It is noit a national right, to be granted ort withheld depending on hoew US nationals are treated by a particular country. No one has authority to deny De Process to anyone who is physically within the US, nor to anyone who is interacting with any part of the US government/the Fifth and Fourteenth Amendments require the Fedferal and State governments, respectively, to grant Due process to al, and congress may not alter this by law, nor authorize any poat of the government to deny Due Process to anyone for any reason.

Due Process is a somewhat flexible concept, and exactly what process is required may vary in different circumstances, but the basic elements of Due Process are not optional. All this is true no matter ow unjustly the courts or other agencies of a foreign government may treat US nationals. Such treatment may be addressed through diplomatic channels, or through economic or political pressure.

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