Miller threatens dictatorship
On Friday, Stephen Miller, Trump's favorite neo-Nazi and Deputy Chief of Staff suggested that Trump might move to strip Americans of a fundamental legal right — habeas corpus. This malevolent wannabe Voldemort was fielding questions outside the White House, including one from the far-right, conspiracy-peddling site Gateway Pundit. A reporter from this journalistic sewer asked:
"President Trump has talked about potentially suspending habeas corpus to take care of the illegal immigration problem. When could we see that happen, do you think?"
Miller replied:
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, I would say that's an option we're actively looking at.
This cavalier knife in the back of a fundamental guarantee of individual rights should send chills down every citizen's spine. Trump will promise that only foreigners (brown skinned) will be subject to extended and anonymous detention with no right to challenge their incarceration. However, he is not a man of his word. As legal residents and US citizens alike have discovered (like they needed more proof).
Miller hedged slightly by threatening the Judicial Branch to toe the fascist line.
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 and Nationality Act, which stripped Article III courts, that's the judicial branch, of jurisdiction over immigration cases. So, Congress actually passed, it'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.
To start, Miller is not a lawyer. He is also a big liar who interprets 'facts' to suit his narrative and advance his dystopian philosophy. For instance, Steve can blithely dismiss the courts, but they have a long-established constitutional imperative to determine whether laws are constitutional or not.
As for the Immigration and Nationality Act, there has been more than one of that name (he doesn't specify which). But Congress passed the major one in 1965. That law does not support Miller's contention, as it does not mention jurisdiction. Note: Unless he is specific, there is no way to know what he is talking about. Ultimately, however, the meaning of whatever act he is talking about will be resolved by SCOTUS.
Trump's Voldemort is correct about one thing. The Constitution allows habeas corpus to be suspended in times of invasion. But it is not up to the President to declare something an invasion. Nor does the President have the right to suspend habeas corpus unilaterally.
Just as only SCOTUS rules on legislative constitutionality, only Congress can authorize the suspension of habeas corpus (see discussion below).
Miller is a man of habit. He will spin anything to maximize its utility in advancing Trump's dictatorial dreams. No doubt the MAGAs are excited at the rights-stripping. But they should remember "First they came for the communists … "
A brief history of habeas corpus and its role in thwarting dreams of tyranny
There is a wall between liberty and autocracy. One big brick in that wall is 'habeas corpus' — a right established in English law by the Magna Carta (1215). The phrase translates as "we have the body." In law, anyone arrested by the authorities has the right to have a court establish that their detention was a legitimate act springing from a specified breach of the criminal code. In layman's terms, it prevents the government from 'disappearing' someone capriciously and indefinitely.
The Cornell Law School has a handy summation of its place in American jurisprudence.
"Deeply rooted in the Anglo-American jurisprudence , the law of habeas corpus was adopted in the US as well. James Madison, in 1789, argued for the adoption of the Bill of Rights , including Habeas Corpus. The fourth Chief Justice of the US Supreme Court, Chief Justice Marshall, emphasized the importance of habeas corpus, writing in his decision in 1830, that the "great object" of the writ of habeas corpus "is the liberation of those who may be imprisoned without sufficient cause."
The US Supreme Court has recognized that the "writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" and must be "administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected.
The Founders enshrined the right in the Constitution, specifically in the Suspension Clause of the Constitution (Article I, Section 9, Clause 2), which reads:
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.
At the time, the Founders must have assumed that future generations would understand the meaning of "Rebellion" and "Invasion." Sadly, like so much of the Constitution, the language is vague, and its meaning is in the eye of the beholder. The Constitution does not even specify which branch of government may do the suspending.
However, case law, the Supreme Court, and legal tradition render it a Congressional decision. Which makes sense as the suspension clause is in Article 1, the part of the document dedicated to all things legislative.
Habeas corpus has only been suspended four times in US history.
In April 1861, Abraham Lincoln suspended habeas corpus despite Chief Justice Taney ruling the suspension unconstitutional, and stating that only Congress could suspend habeas corpus. In December 1862, Congress passed the Habeas Corpus Suspension Act, which, even though it authorized Lincoln to suspend it, made clear the authority had to originate in Congress.
During reconstruction, the Civil Rights Act of 1871 permitted the President to suspend habeas corpus if conspiracies against federal authority were so violent that they could not be checked by ordinary means. Again, the authority came from Congress. In addition, the bill established that there was a threshold before which the suspension could occur.
In January 1905, using the Congressional authority granted under the Philippine Organic Act of 1902, the Governor General of the Philippines suspended habeas corpus in that US territory after violence escalated.
In December 1941, Immediately following the attack on Pearl Harbor, the territorial Governor of Hawaii invoked the Hawaiian Organic Act (1900), to suspend habeas corpus and declare nartial law, In Duncan v. Kahanamoku (1946), SOTUS held that the declaration of martial law did not permit the trial of civilians in military tribunals for offenses unrelated to the military (in this case, public drunkenness).
The bottom line is that Congress ultimately authorized all four suspensions of habeas corpus. And in the two times it was used on Americans on American soil were during a Civil War — the ultimate example of rebellion. And in its aftermath, when armed groups of white conservative men were actively terrorising newly minted citizens. Note: Hawaii was not a state in 1941.
The Constitution was written during a time when thousands of foreigners were flooding into the country. The Founders did not consider them an invasion. Although white conservatives have tried to paint strivers coming to the US as an invasion ever since the Irish, Italians, Eastern Europeans, Catholics, Jews, and Asians have been the new arrivals.
Thank God the country absorbed them. From the Mayflower to today, America's greatness has been refreshed with every new wave of immigrants.
