Dem
47
GOP
53
Over the weekend, Stephen Miller casually mentioned to reporters that the White House is "actively looking at" suspending the writ of habeas corpus for people who are being, or who have been, deported. Shortly thereafter, Donald Trump confirmed that was the case.
Just to make sure everyone is on the same page, the writ of habeas corpus (you have the body) allows someone who is arrested and imprisoned by the government to go before a judge, demand the government justify its actions, and present a defense. If the government cannot fulfill its part of that—demonstrating there is a legitimate charge or charges, backed with legitimate evidence—then the person is free to go. The gentlemen who wrote the Constitution were very careful to explicitly include that right, given that British monarchs were in the bad habit of tossing enemies, real and perceived, into prison, and then leaving them there to rot.
The careful reader might notice that the Trump administration has actually already suspended habeas corpus, at least for those alleged "criminal" immigrants who have been shipped off to El Salvador and other foreign countries. It's not like Kilmar Abrego Garcia is able to get in front of a judge right now and force the government to justify its actions. The declarations from Miller and Trump were presumably made in anticipation of the various court cases that are pending, and also to signal that the administration plans to broaden the number of people it detains without benefit of trial or charges.
The claims, both from Miller and Trump, that it is within the president's power to do this are ignorant, or insane, or maybe both. First, here is the passage in the Constitution that addresses this subject:
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.
The first problem for the Trump administration is that, despite the President's hot air to the contrary, there is no invasion right now. The second problem is that this particular passage appears in Article I, as part of a list of the powers of Congress. In other words, even if there was a rebellion or invasion, it's Congress that can suspend the writ, not the president.
Historical precedent also supports the conclusion that Miller and Trump are wrong, wrong, wrong. The writ has been suspended four times in American history, each time in a limited geographical area, and for a limited amount of time. Those places and times were: (1) in Baltimore, and a few other places with many Confederates/Confederate sympathizers, during the Civil War; (2) in parts of South Carolina during Reconstruction, in an effort to destroy the KKK; (3) in 1905, during the Philippine War, and (4) in parts of Hawaii, for a few months at the start of World War II.
On three of those four occasions, it was Congress that made the decision. The occasion that the Trump administration is presumably leaning on is the first one, where it was Abraham Lincoln who made the decision. That might seem to bolster Miller's and Trump's claims, but not really. To start, there was an actual rebellion going on when Lincoln did what he did. Second, Congress was out of session when he suspended the writ, and would be for 6 more months. At that time, there was much leeway for presidents to assume Congressional powers, at least until Congress got back to town. Third, when Congress did return to Washington in December of 1861, they sustained Lincoln's decision.
What this means is that Miller and Trump are setting themselves on a potential collision course with the legislature. Needless to say, with this particular legislature, what it might do is anyone's guess. Most members are trying to keep their heads down, and hoping that the White House gets this foolish notion out of its head. For example, Sen. John Barrasso (R-WY) was on Meet the Press this weekend, and refused to answer Kristen Welker's questions, saying that this is a distraction, and that he doubts that Congress will have to consider the issue.
That's not to say that all members chose the head-in-the-sand routine, however. For example, Sen. James Lankford (R-OK), who is undoubtedly conservative, but who also has some level of integrity, was also on Meet the Press, and said that due process is the right of all detainees, even non-citizens, and must be followed. He was excoriated by the MAGA faithful for that.
On the other side of the issue was the Senate's biggest dunderhead, Tommy Tuberville (R-AL). In his view, due process
is kind of annoying, because it makes things take so much longer. Further, drawing on his many years as a respected legal
scholar, he
has concluded
that due process is only for white people American citizens, and not for undocumented immigrants.
You know, if a Democratic governor wanted to take a shot at becoming a folk hero, he or she might consider something like this: Find a non-citizen mercenary from a non-extradition country, send them to Washington/Alabama, and have them arrest Tuberville for [mumble, mumble, mumble] and detain him back in that non-extradition country. It would not be an easy operation to pull off, but then again, this kind of thing is what mercenaries do.
We recognize that it is an ugly notion and could turn into an ugly slippery slope, especially since the Trump administration is already threatening to arrest Democratic members of the House. That said, U.S. history is full of examples of people deliberately breaking the law so as to force a court case (i.e., Rosa Parks). And taking Donald Trump's arguments to their logical, if extreme, conclusions may be what it takes for dunderheads like Tuberville to understand why "due process for me, but not for thee" is an untenable position. (Z)