Whereas by the proclamation of the President of the United States of the 15th day of September, 1863, the privilege of the writ of habeas corpus was, in certain cases therein set forth, suspended throughout the United States; and

Whereas the reasons for that suspension may be regarded as having ceased in some of the States and Territories:

Now, therefore, be it known that I, Andrew Johnson, President of the United States, do hereby proclaim and declare that the suspension aforesaid and all other proclamations and orders suspending the privilege of the writ of habeas corpus in the States and Territories of the United States are revoked and annulled, excepting as to the States of Virginia, Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas, and Texas, the District of Columbia, and the Territories of New Mexico and Arizona.

In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the city of Washington, this 1st day of December, A.D. 1865, and of the Independence of the United States of America the ninetieth.

ANDREW JOHNSON.

By the President:

WILLIAM H. SEWARD,

Secretary of State.

In recent months, the radicalism of the Trump administration’s anti-immigration agenda has come into focus, leaving many to wonder just how much further the Republican White House is prepared to go. It was against this backdrop that CNBC reported:

White House deputy chief of staff for policy Stephen Miller said Friday that the Trump administration is ‘actively looking at’ suspending habeas corpus, the right to challenge the legality of a person’s detention by the government. Miller’s comment came in response to a White House reporter who asked about President Donald Trump entertaining the idea of suspending the writ of habeas corpus to deal with the problem of illegal immigration into the United States.

“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 time of invasion,” the presidential adviser said. “So, that’s an option we’re actively looking at.”

https://bsky.app/profile/did:plc:aunpu65mdrhwfie7ynymlzeh/post/3lor5uhp4vk2j

Link to tweet

.....When I spoke about this to my colleague Lisa Rubin, an MSNBC legal correspondent and a former litigator, she described Miller’s idea as “truly crazy,” adding, “Miller isn’t proposing suspending a statutory right; rather, what he’s talking about is triggering a specific constitutional provision, namely the Suspension Clause of Article I of the Constitution. That clause provides ‘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.’”

Steve Vladeck, a Georgetown University law professor, similarly explained that the Constitution’s Suspension Clause “doesn’t allow the President to unilaterally suspend habeas, especially when Congress is in session; applies only to cases of invasion or rebellion (this is quite clearly neither); and even then applies only ‘when the public safety may require it.’ (It doesn’t.)”

This is precisely why it was relevant throughout the 2024 campaign that Donald Trump and his allies would reference the word “invasion” as part of their anti-immigration pitch.

Time will tell whether the president is seriously prepared to pursue such an extreme approach, but that this conversation is even underway is a startling reminder of just how far the United States has gone down a radical path.

Fifth, and finally, 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.

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It’s certainly possible that this doesn’t go anywhere. Indeed, I hope that turns out to be true. But Miller’s comments strike me as a rather serious ratcheting up of the anti-court rhetoric coming out of this administration—and an ill-conceived one at that.