‘We are actively looking at’ suspending habeas corpus

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‘We are actively looking at’ suspending habeas corpus

In recent months, the radicalism of the Trump administration’s anti-immigration agenda has come into focus, leaving many to wonder just how much further the Republican White House is prepared to go. It was against this backdrop that

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White House deputy chief of staff for policy Stephen Miller said Friday that the Trump administration is ‘actively looking at’ suspending habeas corpus, the right to challenge the legality of a person’s detention by the government. Miller’s comment came in response to a White House reporter who asked about President Donald Trump entertaining the idea of suspending the writ of habeas corpus to deal with the problem of ******** immigration into the United States.

“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 time of invasion,” the presidential adviser said. “So, that’s an option we’re actively looking at.”

As part of the same comments, Miller went on to say that the White House’s actions will be guided by whether federal courts “do the right thing or not.”

In other words, if Miller and his colleagues are satisfied that judges are ruling in ways that satisfy the White House, then everything will be fine. If judges fail to make Team Trump happy, then Miller and his cohorts are “actively looking at” alternative ideas, such as suspending the writ of habeas corpus.

There are legal experts who can speak to this with greater authority than I can, but the basic idea behind habeas corpus is that people who are taken into custody by the government have a legal right to challenge their detention. To suspend habeas — something that happened during the U.S. Civil War, for example — is to allow the government to lock people up without charges and without the ability to contest incarceration.

This, according to Miller, is a point of discussion in the White House.

When I spoke about this to my colleague Lisa Rubin, an MSNBC legal correspondent and a former litigator, she described Miller’s idea as “truly crazy,” adding, “Miller isn’t proposing suspending a statutory right; rather, what he’s talking about is triggering a specific constitutional provision, namely the Suspension Clause of Article I of the Constitution. That clause provides ‘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.’”

Steve Vladeck, a Georgetown University law professor,

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that the Constitution’s Suspension Clause “doesn’t allow the President to unilaterally suspend habeas, especially when Congress is in session; applies only to cases of invasion or rebellion (this is quite clearly neither); and even then applies only ‘when the public safety may require it.’ (It doesn’t.)”

This is precisely why it was relevant throughout the 2024 campaign that Donald Trump and his allies would reference the word “invasion” as part of their anti-immigration pitch.

Time will tell whether the president is seriously prepared to pursue such an extreme approach, but that this conversation is even underway is a startling reminder of just how far the United States has gone down a radical path.

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