Then They Came for "Habeas Corpus"
Perhaps we should take this both literally and seriously: “Top White House adviser Stephen Miller says 'we're actively looking at' suspending due process for migrants”
“The "privilege of the writ of habeas corpus can be suspended at a time of invasion. So I would say that's an action we're actively looking at," Miller told reporters, in what Steve Vladeck calls “some of the most remarkable (and remarkably scary) comments about federal courts that I think we’ve ever heard from a senior White House official.”1
Habeas corpus — sometimes known as “the Great Writ of Liberty” — is one of the bedrock rights of our legal system that dates back to the Magna Carta and is explicitly protected by the Constitution.2 But it has also proven to be inconvenient to a regime whose indifference to human and legal rights has become increasingly explicit.
As Vladeck points out, Miller’s claims about the Constitution are both (1) wrong; and (2) profoundly dangerous. You should read his whole analysis here.3 The United States has only suspended habeas corpus four times before, including during the Civil War and in Hawaii after the attack on Pearl Harbor. Only Congress can suspend the right. But we are reminded, once again, that this is not a drill.
Happy Saturday.
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Saturday read
Pope Leo XIV Emerges as a Potential Contrast to Trump on the World Stage - The New York Times [Gift link]
“We have this powerful moral voice that is going to be able to potentially confront the other most powerful American voice,” said Charlie Sykes, an anti-Trump conservative who is Catholic. “Donald Trump bestrides the world as the ugly American, and now we have another prominent American who is able to confront him.”
Mr. Sykes said Pope Leo’s advocacy on behalf of migrants, in particular, could challenge Mr. Trump, who has pursued an aggressive campaign to deport them as quickly as possible.
“Part of Donald Trump’s appeal is that he is the great champion of Christendom and now he’s going to have to explain that to a fellow American who is the pope,” Mr. Sykes said. “There are very few, if any, figures that have the platform and the voice of the Holy See.”
John Prevost, the pope’s brother, told The New York Times in an interview that he did not think his brother would shy away from voicing his disagreements with the president…
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Here’s what Miller said:
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.
The bullshit rolls in cataracts. See Vladeck’s full critique here.
Via Britannica: “Habeas corpus, an ancient common-law writ, issued by a court or judge directing one who holds another in custody to produce the person before the court for some specified purpose. Although there have been and are many varieties of the writ, the most important is that is used to correct violations of personal liberty by directing judicial inquiry into the legality of a detention.”
The writ of habeas corpus was described in the eighteenth century by William Blackstone as a "great and efficacious writ in all manner of illegal confinement".[5] To this day, it is still "universally known and celebrated as the 'Great Writ of Liberty'".
Vladeck makes this important point:
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. That’s not, and has never been, a viable argument for suspending habeas corpus. Were it otherwise, there’d be no point to having the writ in the first place—let alone to enshrining it in the Constitution.
If the goal is just to try to bully and intimidate federal judges into acquiescing in more unlawful activity by the Trump administration, that’s shameful enough. But suggesting 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. Something tells me that even federal judges and justices who might otherwise be sympathetic to the government’s arguments on the merits in some of these cases will be troubled by the implication that their authority depends entirely upon the President’s beneficence.
The "suspension" of Writ of Habeas has been No.1 on the WH hit parade for months now, and Obergruppenführer Miller is just saying the unmentionable out loud, to test-market the notion. Now, if tRump were asked this directly — suspend habeas — more likely than not it would be his current go-to response, "I don't know, we have great lawyers, nobody has said anything to me, blah-blah-blah".
Point is, Miller is grabbing the reins from the aging dolt, who can only summon enough mental energy to support his crypto/memecoin grifting, and a vacuum at the top is being rapidly filled by the likes of Miller, et al.
It's only getting worse, people, over 1300 days of dereliction and mayhem ahead.
"Once again, I want to thank all of you who helped drag me back into this fight. Your generosity has been life changing both for the dogs and for me. In the last 30 days, we’ve had more than 4 million views of “To the Contrary,” and now have more than 76,000 subscribers."
WAY TO GO CHARLIE! You are indispensable to my sanity in your coverage, and to my calmness in your generosity of sharing your dogs with us! THANK YOU!