The White House driveway is an unlikely venue for announcing plans to upend the Constitution. But, strolling up to the bank of microphones on a sunny spring afternoon, the White House deputy chief of staff Stephen Miller seemed delighted to share the news that the Trump Administration is “actively looking at” suspending the writ of habeas corpus, the fundamental constitutional right of those who have been detained to argue in court for their release.
This was, to all appearances, no casual aside; rather, the question that prompted Miller’s remark had all the earmarks of being planted in advance. Before taking any other queries, Miller pointed to the back of the crowd, where a reporter from Gateway Pundit, a far-right website, asserted that Trump had been discussing taking this controversial step “to take care of the illegal-immigration problem,” and asked, “When could we see that happen, do you think?”
Miller’s reply was delivered with his trademark style: condescension undimmed by any recognition of his own ignorance. “Well, the Constitution is clear, and that of course is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion.” He put particular stress on the second syllable of “supreme,” as if some pesky court might be trying to flex its muscle at constitutional expense.
The lecture proceeded, with Miller asserting that the Immigration and Nationality Act had decreed that “Article III courts”—federal judges with lifetime tenure, in contrast to immigration judges, who are part of the executive branch and can be fired—“aren’t even allowed to be involved in immigration cases. Many of you probably don’t know this.”
Where to start with the things that Miller, who is not a lawyer but happy to play one on the White House driveway, probably doesn’t know? As the Georgetown University law professor Steve Vladeck aptly summarized, “His argument is factually and legally nuts.”
Miller misunderstands the significance of the right of habeas corpus, for starters. Known as the Great Writ, it is an ancient right, dating at least to the Magna Carta’s declaration that “no man shall be arrested or imprisoned . . . except by the lawful judgment of his peers and by the law of the land.” The Supreme Court has described it as “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” For the drafters of the Constitution, habeas was such a critical aspect of personal liberty that they put it in the original document, not waiting for the Bill of Rights—a point the Court made in a 2008 decision establishing that the right extended to non-citizens held at Guantánamo. Miller’s spin notwithstanding, the Constitution makes clear that the right to habeas corpus is the norm, not the exception: “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.”
That provision is in Article I, which outlines the powers of the legislature and illuminates the second thing that Miller got wrong: only Congress has the power to suspend habeas corpus. The President can’t act unilaterally. Yes, Lincoln did so in 1861, at the start of the Civil War. He was slapped down by Justice Roger B. Taney (yes, that Taney, the author of the Dred Scott decision). Taney wrote, “I can see no ground whatever for supposing that the President in any emergency or in any state of things can authorize the suspension of the privilege of the writ of habeas corpus.” Taney, in a practice that continued until the early twentieth century, was sitting as a circuit justice at the time, and therefore his opinion is not a ruling of the Court. Notably, Lincoln didn’t appeal it to the full Court, but he later defended his reasoning, explaining in a message to Congress that, “as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.” If you think Presidential power to act remains a disputed question, consider this 2014 assessment from Amy Coney Barrett, who was a law professor at the time: “Scholars and courts have overwhelmingly endorsed the position that, Lincoln’s unilateral suspensions of the writ notwithstanding, the Constitution gives Congress the exclusive authority to decide when the predicates specified by the Suspension Clause are satisfied.”
That brings us to Miller’s third error: that, even assuming Trump could act on his own, the grounds for suspending habeas corpus exist. This is not Lincoln confronting the rebellion of the Southern states. And consider the other instances in which Presidents, acting on emergency powers delegated by Congress, have suspended habeas corpus: after the bombing of Pearl Harbor; during Reconstruction-era rebellions in South Carolina counties overtaken by the Ku Klux Klan; in the Civil War; and in the Philippines, in 1905, in the midst of the Moro Rebellion against American rule. Ignore Miller’s hyperventilating; the country is not now facing an invasion, much less one in which “public Safety” requires suspension of the writ. Trump has invoked the 1798 Alien Enemies Act to round up and remove alleged members of the Venezuelan gang Tren de Aragua. At least four federal judges, including one nominated by Trump and another by George W. Bush, have rejected that interpretation.
Then there is Miller’s baseless declaration that Article III judges “aren’t even allowed to be involved in immigration cases.” That’s evidently false in the cases involving the Alien Enemies Act—last month, the Supreme Court instructed that challenges to Trump’s actions had to be brought as habeas cases. More broadly, though the Immigration and Nationality Act sends some cases to specialized immigration courts, it does not, as Miller claims, require Article III judges to butt out entirely. For example, in the case of Rumeysa Ozturk, the Turkish graduate student detained for writing an op-ed critical of Israel in the Tufts University student newspaper, the Administration contended that the I.N.A. prohibited the federal court from considering her habeas petition. In a ruling last week, the U.S. Court of Appeals for the Second Circuit rejected that argument, saying that the government “dramatically overstates the reach” of the immigration law. A federal judge ordered Ozturk released after more than six weeks in detention.
The law is nowhere near as definitive as Miller claims, and the notion of suspending habeas corpus is so outlandish that it’s tempting to ignore his assertions, dismissing them as more Miller trolling. No doubt there is an element of rabble-rousing at work in his hyperbolic warning that courts ruling against the Administration in immigration cases are engaged in a “judicial coup by a handful of Marxist judges,” which “can only be understood as an attack on democracy.” But there is something more menacing going on here. The not so subtle implication is that judges ought to think twice about standing in the Administration’s way, lest they trigger a suspension of habeas corpus. Asked whether Trump would take that dramatic step, Miller offered, “Look, a lot of it depends on whether the courts do the right thing or not.”
