With Courts Repeatedly Telling Trump Migrants Have Rights, Stephen Miller Suggests It’s Time To Suspend Habeas Corpus

Legal Issues

from the your-rights-end-where-the-Trump-administration-begins dept

The mass renditioning of migrants hasn’t gone exactly as planned. Sure, it’s resulted in extreme amounts of stupid cruelty, which is very much on-brand for Trump administrations, but the mass deportation efforts have also met with considerable resistance from federal court judges.

The administration hoped to keep the courts from doing anything to protect migrants and their rights by invoking the Alien Enemies Act to strip them of whatever minimal protections they had. But you kind of need a war to justify utilizing the AEA and Trump sure as shit doesn’t have that. Not only are the standards used to declare detainees sloppy and tainted by massive amounts of confirmation bias, but there’s absolutely no evidence available anywhere that the Venezuelan government is directing the actions of any actual Tren de Aragua (TdA) gang members detained by ICE and CBP. With each passing day, the “we’re at war with TdA” excuse is further undercut by reports crafted by intelligence agencies and federal law enforcement agencies.

The main leverage point for suing the government over deportations are writs of habeas corpus. These motions demand the government bring the detained person to court and prove their impending deportation and/or ongoing detention is justified. Naturally, the Trump Administration is angry this right afforded to everyone in the United States, whether they’re here legally or not, is slowing down its mass exodus of brown people.

Enter Stephen Miller, Trump’s homeland security advisor. Miller made a statement to reporters that is the normal Trumpian blend of lies, half-truths, and implied threats towards co-equal government branches. Here’s the whole thing, as posted by The Bulwark on Bluesky:

Here’s everything that fell out of Miller’s mouth during his response to reporters:

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. So … that’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not. At the end of the day, Congress passed a body of law known as the Immigration Nationality Act which stripped Article III courts, that’s the judicial branch, of jurisdiction over immigration cases. So Congress actually passed what’s called jurisdiction stripping legislation. It passed a number of laws that say that the Article III courts aren’t even allowed to be involved in immigration cases.

Yikes. Here’s a top Trump official saying — out loud! — that if there are rights standing in the way of its deportation scheme, the administration will just go about the business of eliminating those rights, rather than continue to do deportation business within the confines of the Constitution.

Here’s how Steve Vladeck describes it prior to his excellent point-by-point breakdown of Miller’s statement:

I know there’s a lot going on, and that Miller says lots of incendiary (and blatantly false) stuff. But this strikes me as raising the temperature to a whole new level—and thus meriting a brief explanation of all of the ways in which this statement is both (1) wrong; and (2) profoundly dangerous. 

It’s one thing to be wrong and, subsequently, mostly impotent. Being wrong and profoundly dangerous is possibly the worst combination.

As Vladeck notes, the Suspension Clause was added to limit abuse by the government, not encourage it. That’s where Miller is wrong.

To casually suggest that habeas might be suspended because courts have ruled against the executive branch in a handful of immigration cases is to turn the Suspension Clause entirely on its head.

He’s also wrong about the courts in general. There is no “jurisdiction stripping” in immigration cases. Changes to the law funnel more immigration cases directly into immigration courts, but nothing in the law forbids federal courts from handling cases in the first instance. And federal Article III courts have always been the landing spot for appeals of immigration court decisions.

Here’s where Miller is dangerous:

Miller gives away the game when he says “a lot of it depends on whether the courts do the right thing or not.” It’s not just the mafia-esque threat implicit in this statement (“I’ll make him an offer he can’t refuse”); it’s that he’s telling on himself: He’s suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose. 

[…]

[S]uggesting that the President can unilaterally cut courts out of the loop solely because they’re disagreeing with him is suggesting that judicial review—indeed, that the Constitution itself—is just a convenience.

The Suspension Clause can only be used in extreme cases of insurrections or invasions that threaten the public’s safety. No one invoked this Clause when an actual insurrection attempt took place. And there’s absolutely zero credible evidence that even remotely suggests the mere presence of foreign gang members on US soil constitutes an “invasion.”

Miller’s statement is just another play call from the Trump playbook: yet another option it may try to deploy to deny even the most limited form of due process to detainees slated for deportation. Trump and his officials want nothing to do with the things that actually make America great, because those things stand in the way of them doing everything they can to make America an autocratic shithole.

Filed Under: alien enemies act, civil rights, donald trump, habeas corpus, immigration, stephen miller, tda