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.
