The Authoritarian Fantasties of Stephen Miller
Habemus habeas corpus?
White House Deputy Chief of Staff Stephen Miller thinks that the Trump administration should be allowed to suspend habeas corpus rights in its pursuit of mass deportations. As the BBC reports, Trump administration considers suspending habeas corpus.
Donald Trump’s administration is “actively looking at” suspending habeas corpus – the right of a person to challenge their detention in court – one of the US president’s top aides has said.
Stephen Miller, the White House deputy chief of staff, told reporters on Friday that the US Constitution allowed for the legal liberty to be suspended in times of “rebellion or invasion”.
His comments come as judges have sought to challenge some recent detentions made by the Trump administration in an effort to combat illegal immigration, as well as remove dissenting foreign students.
“A lot of it depends on whether the courts do the right thing or not,” Miller said.
[…]
Habeas corpus – which literally means “you should have the body” – allows for a person to be brought before a judge so the legality of their detention can be decided by a judge.
The legal right has been suspended four times in US history: during the American Civil War under Abraham Lincoln, in Hawaii following the 1941 Japanese bombing of Pearl Harbour, in the Philippines during US ownership in 1905, and while combat the activities of the white supremacist Ku Klux Klan group in the 19th Century.
The section of the US Constitution which includes the suspension of habeas corpus grants its powers to Congress and not the president.
Further, the notion of habeas corpus has been inherent to common law for centuries before the US was even founded. It is foundational to due process and the rule of law. Suspending and/or ignoring habeas corpus in fundamentally authoritarian behavior.
I would also add that Lincoln’s suspension of habeas is often cited as a critique of his presidency, but it was at least in a period of actual war and rebellion. The action in 1941 was in the context of a military attack and was legal under the Hawaiian Organic Act 1900 (i.e., there was Congressional authorization). Note that Hawaii was a territory and not a state at the time. Likewise, the suspension in the Philippines was when the US had jurisdiction over the territory and was in the context of an active rebellion. The suspension in South Carolina was in the context of laws passed by Congress linked to Reconstruction.
As far as I can tell, the only time habeas corpus rights were suspended without congressional authorization was by Lincoln in the Civil War.
Here is the appropriate passage from the US Constitution (Article I, Section 9, Clause 2).
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Despite the rhetorical claims of the administration, we are not experiencing an invasion (and more than one federal court has said so).
Moreover, it strains all credulity to accept the notion that people who are here on student visas (even if status is revoked), or who have a judicial order in place to prevent their deportation to El Salvador (i.e., Kilmar Abrgeo Gracia), represent invaders or are in some way existing in the context of a threat to public safety.
See more from law professor Steve Vladick, Suspending Habeas Corpus.
See also the Annotated Constitution on this clause.
Stephen Miller is echoing His Master’s Voice, which sounds like a toddler in line at the grocery store whining about his siblings’s cookie.
Of course laws, rules, and norms are for losers and suckers! (I’m hearing Dan’s response to Jane in the old SNL Point/Counterpoint in my head).
I’ve long suspected the cults use of “invasion” would lead to something like this. The word is too loaded to be used innocently.
I also suspect that the phrase habeus corpus is much like the word divorce. Once a couple utters the word it becomes pretty much inevitable. The idea of suspending habeus corpus is now out there, with no equal and opposite force to stop its momentum.
And who is going to stop Miller? It’s up to the courts and most likely The Court.
Do we think that The Court (this will probably reach the Supreme Court) will let Trump/Miller define illegal immigration as an ‘invasion’ in order to permit suspension of Habeas Corpus?
If I was to set the odds, I’d say it’s over 50% that the Unlimited Unitary Executive position prevails.
@al Ameda:
Not taking the over/under on this one…
How was the rebellion or invasion missed in this administration’s Annual Threat Assessment? The same one that failed to note the Venezuelan invasion or the Canadian or Mexican invasion?
This is what I was complaining about a few days ago by this administration’s [waives hand in the air] “findings” on all matter of things.
@Flat Earth Luddite, @al Ameda: Even if SCOTUS would object, there’s still the Lincoln “solution:” when it was suggested to him that the Supreme Court would stop him,* he replied something to the effect of not from prison, no, they won’t.
*I believe the issue involved the Copperhead Society and arresting people for being members (sound familiar, BTW?)
@Daryl:
Where is George W. Bush? Or Mitt Romney? Or Dick Cheney? Paul Ryan?
Where are the Republican Elders who would suffer the least by standing up and trying to reign in their parties’ insane excesses?
I understand that the current batch in Congress are cowards, and fear the political consequences of stepping out of line, and so I’m not sure where to place them on the scale of collaborator to true believer, but George W. Bush can do more for his country than just painting dogs and he has enough horrors to his name that he might want a bit of karmic balance or a kind footnote in the history books.
I’d say the same for any retiring Senators and Representatives.
Or do they all approve of the end of democracy and rule of law?
Lions and tigers and bears, oh my!
Suspending habeas corpus is the domestic equivalent of going nuclear.
It’s a long standing position in Britiush, and related American law, as I understand it, that the exectutive may do so but ONLY in the context of a genuine emergency, such as war or insurrection.
As such obviously does not apply, this should be anathema to any principled conservative, libertarian, or traditionalist legalist.
The lack of push-back on this indicates the degree to which the Republican Party has been neuterd by fear of MAGA, or by pursuit of short-term personal advantage.
And how American “conservatism” is degenerating into mere populist opportunism, and reflexive partisan trolling.
@Connor:
Oh boy, Drew/Connor/Guarneri has graced us with some more of his flaccid thoughts.
Yes. And that in itself makes Miller’s contemptible wish even more demented and corrupt.
He is not psychologically fit to live within a civil community.
@Gustopher:
Of that list I find W to be the biggest disappointment. Reality is Bush would just be ridiculed in “kill the messenger” fashion.
Cheney has kind of used his daughter as proxy.
But in the end it doesn’t matter. Once you’re willing to excuse serial sexual assault and felony fraud pretty much anything else is fair game. If Trump is goes nuclear, by suspending habeus corpus, there’s nothing going to stop him. He’ll have Connor and the rest of the cult convinced that’s it’s the best thing that’s ever happened.
@Daryl: He is a fundamentally unserious person.
@Gustopher: Considering what Dubya did for his country the last time, I’m pretty content with him keeping to dog artistry. And I feel the same way about Ryan, Romney, and Cheney, too.
I’ll grant that all of those “public servants” are light years ahead of Trump, but “better than Trump” is a too low a bar. I don’t accept that their objections to Trump will either resonate with the MAGAts who vote in elections (and the swing/moderate voters who aided and abetted them in 2024) or represent any type of a return to sanity, let alone good government. With vanishingly rare exceptions, Luddite’s long departed coffee buddy was right that since Nixon, the national scene has been an endless parade of doofuses, each one more hapless than the last.
@Just nutha ignint cracker:
I agree but with one caveat: timing. There may never be a time, and this isn’t it. But there may be a time. I can write a narrative that would get us there. But in current reality? They’d just be wasting breath.
@Daryl: If there’s anything to Karma, the leopard will be coming for his face in due course.
@Michael Reynolds: I accept the notion that timing is everything–I spent too many years being a musician to not realize the importance of it. My larger point, though, is that whatever message that self-aggrandizing objectivists, libertarians, and rent seekers would bring will be less than useless to address the needs of the country. Good government has the short stack at this table. Bad for a comeback.
@Steven L. Taylor:
It’s notable that he didn’t bother jumping into the other two threads today to refute Trump’s simpleness or defend his authoritarianism. That apparently takes more effort than a drive-by suggestion that people are overreacting to Steven Goebbels.
@Daryl:
I don’t think Connor’s comments were “flaccid”. To the contrary, thinking of imprisoning Democrats without trial would give Connor an erection.
@Scott F.: His current moves are a) dismissing obviously bad data points for Trump because he wants to pretend like data points don’t matter, even as they form a trend, b) ignoring obviously serious issues, all the while c) acting like everyone is overreacting but never in a way that actually makes an argument.
As noted, he is a deeply unserious person.
@Steven L. Taylor: Hard to make an argument when you have no points in your favor, though. (And yes, I guess that makes me one of the losers trapped in the echo chamber.)
In Lincoln’s defense, Congress was not in session when he suspended habeas corpus so he arguably had to act without congressional sanction. Congress approved his actions after the fact when they reconvened. Of course, I would imagine Congress would do the same if Trump were to suspend habeas corpus.
@Moosebreath: A small one, sure.
@Franklin:
I will defer to your knowledge of that matter.
@Daryl: Funny way to spell flatulent.
@Don:
I recall reading, possibly in Bruce Catton’s Civil War histories, that, yes, it was an emergency and Congress wasn’t in session. But also that Lincoln, being a very good lawyer, knew that the law is what it enforces, not what it says. He was faced with an imminent crisis, some Maryland officials and a pro secesh mob were blocking troop and supply movements to DC, leaving the national capitol effectively surrounded. Lincoln was, IIRC, explicit that his suspension of the writ would be overturned, but even in 1861 the wheels moved slowly and the crisis in Maryland would be over by the time SCOTUS acted.