White House 'actively looking' at suspending habeas corpus in immigration
Category: News & Politics
Via: john-russell • last year • 53 commentsBy: Rebecca Beitsch and Brett Samuels (The Hill)
S E E D E D C O N T E N T
White House deputy chief of staff Stephen Miller said Friday that President Trump and his team are "actively looking at" suspending habeas corpus as part of the administration's immigration crackdown.
"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," Miller told reporters at the White House.
"So, it's an option we're actively looking at. Look, a lot of it depends on whether the courts do the right thing or not."
A writ of habeas corpus compels authorities to produce an individual they are holding and to justify their confinement.
It's been a key avenue migrants have used to challenge pending deportations under the Alien Enemies Act, a rarely-used 18th-century power Trump cited to deport Venezuelan nationals he's accused of being gang members to a notorious megaprison in El Salvador.
It's also been how recently detained students such as Rumeysa Ozturk and Mahmoud Khalil have challenged their detention.
The Constitution says habeas corpus may not be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it."
The writ of habeas corpus has been suspended only four times, according to the National Constitution Center: During the Civil War, in parts of South Carolina overrun by the Ku Klux Klan during reconstruction, in two provinces in the Philippines in 1905, and in Hawaii after the bombing at Pearl Harbor.
Suspending habeas corpus, as a result, would be highly controversial. But the administration has already taken controversial steps as part of its deportation regime, such as triggering the 1789 Alien Enemies Act.
The Supreme Court directed migrants to challenge their Alien Enemies Act deportations through habeas corpus, and since then, judges in at least three cases have sided with migrants, determining the Trump administration was improperly using a law meant to address warfare and incursions.
It's possible judges might have a similar interpretation of efforts to suspend habeas corpus, as challengers would also likely dispute whether the U.S. is currently experiencing rebellion or invasion.
Miller asserted that the Immigration and Nationality Act, passed in 1965, takes away the judicial branch's jurisdiction over immigration cases and gives the president wide authority to end temporary protective status and other policies.
"The courts aren't just at war with the executive branch, the courts are at war — these radical, rogue judges — with the legislative branch as well. So all of that will inform the choices the president ultimately makes."
However, judges routinely weigh the legality of immigration policies, which are often brought by plaintiffs directly affected.
The Trump administration has for months clashed with federal judges as it seeks to aggressively implement its immigration agenda by deporting people, suspending refugee admissions and taking other steps to curb the flow of migrants into the U.S.
Administration officials on March 15 rebuffed an oral order from U.S. District Judge James Boasberg to turn around or halt flights of Venezuelan migrants headed to the Salvadoran prison — teeing up the legal battle that brought the Supreme Court's ruling on how such cases must proceed.
A federal judge in Massachusetts on Wednesday blocked the Trump administration from deporting a group of migrants overseas, possibly to Libya and Saudi Arabia.
Another federal judge granted bail to Tufts University's Ozturk on Friday, freeing her from federal immigration custody more than six weeks after the Trump administration revoked her visa and arrested her.
One Democratic aide mocked Miller for suggesting the lifting of a bedrock constitutional principal.
"Stephen Miller is not a lawyer but he plays a s‑‑‑ty one on TV. No one in their right mind would take his advice seriously, but sanity is in short supply in this administration," the aide said.
Miller's comments come amid a broader discussion over the due process protections afforded to migrants under the Fifth Amendment to the Constitution.
Like the suspension of habeas corpus, the Alien Enemies Act has also been used just a handful of times, activated three times prior and all during times of war. It was most recently used as the basis for Japanese internment.
Democrats and immigration advocates argue habeas petitions are the only way for migrants to gain any due process as they might otherwise be deported to a foreign facility where the Trump administration has argued in court they have no legal right or power to secure their return.
Many of the men deported or fearing such removal have denied having any gang ties and Democrats have argued they deserve a day in court to challenge such assertions.
"If Donald Trump can sweep noncitizens off the street and fly them to a torturer's prison in El Salvador with no due process, he can do it to citizens too," Rep. Jamie Raskin (D-Md.), the top Democrat on the House Judiciary Committee, said last week. "Because if there is no due process, no fair hearing, you have no opportunity to object."
This story was updated at 4:23 p.m.
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This is serious.
And I fully expect the pro-CotUS, pro-rule-of-law, pro-due-process individuals who support Trump to toss their principles aside and back this further unconstitutional expansion of power by Trump.
I'll let the Supreme Court determine what's legal and constittutional, or not
And if Trump disagrees with the SCotUS, do you stick with the SCotUS or hold that Trump is correct?
I'm with you. I believe in the rule of law.
Good!
Then you should be appalled that Trump's indictments for his attempt to steal the 2020 election with fraud, coercion, lying, and incitement were delayed to the point of being killed.
You should be appalled that Trump is using EOs to bypass and violate the law.
But no, you applaud this scoundrel.
Actually, I'm appalled that lawfare took place within the US.
You should be appalled that Trump is using EOs to bypass and violate the law.
He isn't trying to violate laws. I believe that certain things that are obvious should have been codified into law. District Judges have no authority to issue nationwide injunctions. Unfortunately, it does not specify that anywhere. I assume that when the congress instituted the District Court system, they never expected that one day there would be far left activist judges in the pipeline. Thus, this week, within 2 days as a matter of fact, the SCOTUS will begin hearing oral arguments on that very subject. It is my expectation that the SCOTUS will tell the District Courts that they have no such authority. I will also be listening carefully to hear what you say about such a decision. I know that you are a big believer in "the rule of law."
Donald Trump and John Eastman adhered to the Eastman memos in an unsuccessful campaign to pressure then-Vice President Mike Pence into obstructing the 2021 United States Electoral College vote count and overturning the 2020 election of Joe Biden. The Trump campaign engaged Eastman with a formal retainer agreement signed on December 5, 2020, for services in litigating the election outcome1.
Additionally, on January 4, 2021, Trump summoned Pence to a meeting in the Oval Office with Eastman, where Eastman argued that Pence could take matters into his own hands during the joint session on January 6. Eastman presented two options: Pence could unilaterally reject the certified electors from several states won by Biden, thereby handing the presidency to Trump, or he could delay the joint session to give state legislatures the opportunity to certify new electors loyal to Trump2.
Bing Chat GPT
So he followed bad legal advice. That's the gotcha,
Being an idiot is not an excuse for traitorous behavior. There was no legitimate argument in 2020 that the results in the swing states were disputed. It was all a hoax. Trump knew it was a hoax. Thats why he was indicted. He approved of a plan which called for Pence to declare the swing states to be in dispute. But there was no dispute. His actions in approving the plan were completely unAmerican and should have instantly disqualified him from any future involvement in politics.
How do you not even recognize the use of lawfare and additional measures (e.g. targeted threats to legal firms, removal of security detail and clearances, weaponization of the DoJ, etc.) used by Trump? How can you not be appalled at what Trump does?
Good grief, Vic, open your eyes. It is as though you block out anything bad that Trump does and only allow the good.
Anything is possible, but I do not expect even this SCotUS to deny that affirming the law by a district court applies to everyone ... including the PotUS.
Where were you while lawfare was the soup du jour against Trump? What's good for the goose and all that.
I was right here commenting. Did you not notice? I stated clearly that the private citizen Trump lawsuits had clear political motivation even though the charges were valid. I stated clearly that the indictments against Trump as PotUS were quite valid and backed that up.
So cut the cheap tactic of trying to claim hypocrisy and deal with reality. Further, it is disgusting that anyone would think that the rule of law should be violated based on the premise that it was violated before.
Jethro Bodine ciphering says, "One and one equals two" - wrongs!
It's like the defendants at Nuremberg saying: "they are going for revenge & retribution."
but I do not expect even this SCotUS to deny that affirming the law by a district court applies to everyone ... including the PotUS.
Really? I'll bet my house that they say those judges' authority is limited to their districts.
I would think long and hard about making such a bet Vic. District judges can, albeit rarely, make rulings on legal matters with national consequences, especially if constitutionally based.
Skipping the current ones, let's go back to a long-settled case in Trump's first term where he lost on appeal (in other words, it stuck):
Don't take that bet. Vic already owes me that house as regards an old wager...
Why do you bother?
If only you were up to betting you might have won. Don't lie.
There is only one member here who made a bet with me and he lost and had to suspend himself. He is still with us, if you want to ask him about it.
Not a wager that i can recall, but do you remember this great prediction….
‘Kamala Harris will win the election by ten million votes’.
Those were great times, weren’t they?
I like to engage on social media. One of the prices of this is that one must put up with some inventing alternate realities and penning lame and/or dishonest posts.
What is especially strange to me, and this is a general observation, is that anyone who holds true to the GoP would be willing to suspend or ignore the rule of law conditionally. But with Trump as PotUS there is a severe conflict between what would normally be a conservative principle and the (apparent) need to defend the leader of the party no matter what.
And you are very good at handing their collective butts to them
I agree completely... so I'd really love to have a genuine conversation with our MAGA members... but that never happens. They have nothing to say, so they dissimule and lie. There's some fascinating psychology happening under that red baseball cap, but MAGA Central's Ministry of Truth forbids genuine conversation...
That "fascinating psychology happening" is called political psy-ops.
MAGAs are not here to positively engage and interact with liberals and secularists. They do not have 'dig' discussions with us (what happens here is "discussion llite' ) because they do not plan to 'listen' and allow themselves to be persuaded or to feel anything for us.
They are here to spread their message of self-interests and dominance over 'Us'; why conservatism is better than liberalism; why greed is better than sharing; why heterosexuality is better than LGBTQ. why White is superior to any other color. why the majority is better than the minority. And, so forth and so on.
MAGA will 'say' that I have got it all wrong. But it will only be 'lip-service.' Because, . . . psy-ops.
Good post.
They are not only here to spread their message. They also intend to flood the site (and all other social sites) with bullshit, so that truth is buried.
C'mon CB. You don't see any irony at all in that statement? Just switch your comparison subjects (ie conservatism and liberalism swap places as do the other Examples.)
They came here to own the libs but forgot their checkbooks
[✘] There are more important things going on.
Perfect example of what I just said about pathetically trying to talk down to people and use childish name calling.
More than just a little projection.
No one wants to own a liberal.
Most of them mooch off you until you have nothing left.
I see no irony in what MAGAites come here here and 'do.' It is a gross waste of time with 'nothing' denials. Even in your immediate comment its lipservice and nothing of substance that will broaden any one's knowledge of what MAGAites want and most significantly: Why.
Just talking pass people and not to people makes for shallow 'conversations.' At the end of it, nobody is 'fed.'
If relating facts of the matter is what you perceive as talking down to you, then I wish to know what you consider talking pass 'us' does to give our 'talks' value.
Additionally, please share something profoundly positive about a liberal in todays politics. Break the ice.
Don't waste time with pithiness. Take time to express a comprehensive point. I honestly believe MAGAites (surrogates and supporters for Trumpism) come here to negatively propagandize, I truly believe that MAGAites believe 'time is money,' and so they must be about making money 'wherever' they 'land'. . . including here.
I do not recall anything deep being engaged in with you—ever. It's all shallow and hollow 'encounters.'
Case in point to what I wrote at 4.2.21.
And bugsy, of course, MAGAites want to 'own the liberals.' Here is Dinesh D'Souza speaking on that very topic:
You mean that exists?
Sometimes a little pithiness is all that is required to get a point across.
When it is substantive, yes. If it is not substantive—not!
... as if that matters to trumpski.
Wow. Do you all see how much brain-power goes into being a 'jerk' to fellow human-beings. Some people have none of the grace whatsoever to share-which God has poured out on them!
The law and order folks really falling off the wagon now. Absolute dictator move.
Where is the "tea party"? Where are the Constitution Republicans? What does John Roberts the head of the Supreme Court have to say?
If Republicans don't begin standing up for our laws, our democracy, our freedoms right now, the man who declared "dictator on day one" and the sycophant appointees who are pushing for the destruction of our laws and Constitution will install a permanent dictator.
Well our nation could stand to have more proper conservatives stand up for it and its constitution en-mass 'now,' whether than have them 'trickle' in lots of one, two, or several conservatives at at time after a long 'wait.'
This has been clear since long before the election. It's really hard for "normal" Americans to accept the obvious truth tat their President is actively destroying our democracy. People simply do not want to believe it.
Imagine even wanting the power to deprive someone of life, liberty, or property without justifying it according to the law in open court. And now legions of Americans are endorsing the idea because of partisan political allegiance.
Calling this out for what it is: It's white conservative dominance flexing its power and control over 'us.' It may sound like a broken record, but that is what it is.
In the so-called, "good ole days" white males led our country by passing laws that did not take account of diversity, were unequal, and not inclusive it was simply "white is right."
(This is what you have in the Trump administration. If a white conservative heterosexual male (MAGA) does it - it has to be right!)
Then came the rule of law and the rise of Others in the country. And now, republicans are on the 'frontline' sitting on their damn hands (in attempts to stifle further progress) and at the same time pushing against the rule of law, because they (and a "handful' of minorities and otherized people) want to have their (white) conservativism be dominant and in charge of us all.
The problem is this: MAGA is reactionary. It's whole foundational ideology is to make those who are not conservative (not MAGA) second-class citizens under the power and control of white male leadership.
We must stand us (all who care about the rule of law) for ourselves. Because there is absolutely nothing wrong with being a Liberal. There is enough room for all of us in this country to be free, equal, included, and prosperous.
Anybody saying or writing anything else, is a lie and the truth is not in him/her/them.
And this is particularly true of Steven Miller (pictured in the article)!
Ok, let’s talk about the Constitution for a minute. Habeas Corpus is not some privilege invented by Congress in the 1780s. It is a right, and has been part of our legal tradition for over 800 years.
And yes, even though this is a different country, English legal precedent has been cited by our Supreme Court many times. It is considered part of our legal tradition.
Second, there is a section on the suspension of habeas corpus in the Constitution, but it appears in Article I, Section 9, which details the powers and limitations of Congress - the Legislative branch. There is nothing in the Constitution that allows the president or any part of the Executive branch to suspend habeas corpus. Nothing. Miller is talking about doing something that neither he nor the president have the legal authority to do.
Miller and by extension of office, Trump are attempting to straddle the issue and get it before the supreme court (the only court these two recognize as having sufficient force of assent or of dissent to be their equal), where they hope and "pray" that the conservative majority will see law from their shared conservative perspective. It's a gamble. But that is the game: persist and run every legality up to the highest court as "routine" practice! Sooner or later, the supreme court will have to consider the repetitious volume of requests as trivial and deny or limit the administrations access to the court. That is, the court will have to make the administration aware that not every issue it seeks to 'creatively and act on' is a worthy constitutional challenge question.
We're not being invaded
And yet this is the kind of ambiguous 'push' of the limits we have come and will continue to expect from Trump and his cohorts. They want to exceed expectations. . . which I can appreciate. . . but at what 'cost'? Stretching the word, "invasion" out too far can cause great harm to some otherwise innocent people.
Let's not forget Miller is one of the writers of Project 2025. They want to install an authoritarian figurehead to allow them to suspend the CotUS, SotUS and Congress so they have total control. The idea was to install loyal people in all branches and offices of the government, then contrive an excuse, like 'invasion', to bypass the law, then use protests as another excuse to declare martial law.
They end game is to transform the country into THEIR authoritarian theocracy. They are too stupid to understand it will never work, but it may yet lead to bloodshed.
And looking ahead, I do not understand what the democratic party and other TRUE patriots in this country are doing and waiting for. Trump has no intention of leaving after his term. . . he will stage. . . something. . . some specious and foul explanation for why he should remain. A hint (he used it with Zelinksky indirectly) is an ongoing war. . .which we are not in right now. . . but that can change depending on motivation.
Long story short, Trump is doing with this country what he wishes and what he is not HALTED in doing. While the public lays on its couches. . . sleeping. These conservatives will eat the NATION'S righteous breakfast, lunch, and dinner.