Stephen Miller is wrong: the president can’t just suspend habeas corpus | Austin Sarat

The writ of habeas corpus is much older than the American constitution. That writ, which enables people detained by the government to challenge their detention in court, has been regarded as an essential bulwark of liberty in the English-speaking world since the 15th century.

In this country, Alexander Hamilton said the writ of habeas corpus provides “greater security to liberty and republicanism” than any other provision in the constitution. And in his first inaugural address, President Thomas Jefferson called the protections provided by habeas corpus one of the “essential principles of our Government”.

But you would never know that from what Stephen Miller, Trump’s deputy chief of staff, said on Friday. Talking to reporters outside the White House, Miller reported that the administration was “actively looking at” the possibility of suspending the writ of habeas corpus for people who are in the country illegally.

What Miller said suggests he is either ignorant about the constitution or he just doesn’t care. Either way, the authority to suspend the writ of habeas corpus is vested in Congress, not the president.

Miller’s comments should be a wake-up call for Mike Johnson, the speaker of the House of Representatives, and John Thune, the Republican majority leader in the Senate. By defending Congress’s prerogatives, the Republican leaders could defuse another brewing constitutional crisis – and act in line with what the founders of the American republic would want.

Miller’s remarks come after a string of defeats in federal courts over the arbitrary way Trump and his colleagues have handled what they see as the crisis of illegal immigration. And now Miller seems to think that the president can unilaterally strip those people of a right guaranteed to everyone in the government’s custody, regardless of their citizenship status.

“Well,” he observed, “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.” Yesterday, the homeland security secretary, Kristi Noem, joined Miller in claiming that the level of illegal border crossings under Joe Biden counted as a constitutional reason to suspend the right.

They are right that the writ can be suspended.

But, whatever one thinks about what Biden did when he was in office, there is no invasion. The Department of Homeland Security itself says that the first 100 days of the Trump administration have produced “The Most Secure Border in American History.”

And even if there was, the constitution’s text suggests that the president cannot suspend what Miller called the “privilege” of habeas corpus. The suspension clause is in Article I of the constitution, where the powers of Congress are enumerated, not in Article II, which deals with the Executive Branch.

The language of the constitution also makes clear that the writ of habeas corpus may be suspended only if Congress determines that there is a “Rebellion or Invasion” and that “the public Safety may require it.”

Looking back at the constitutional convention is also instructive. The convention considered but did not adopt the following language: “The privileges and benefits of the writ of habeas corpus … shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time …”

Instead, the convention adopted the language of Article I, Section 9, that “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.” And in 1807, Chief Justice John Marshall cleared up any doubt about which branch of government could suspend habeas corpus.

He wrote: “If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.” Joseph Story, a prominent early commentator on the constitution and the convention that proposed it, also confirmed that “the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion.”

In fact, the writ of habeas corpus has only been suspended four times in American history. The first time was in 1861 when President Lincoln, acting without congressional authority, suspended it in Maryland, a border state, to address potential threats to the capital.

Habeas corpus was also suspended in South Carolina in places that were overrun by the Ku Klux Klan during Reconstruction; in the Philippines during an insurrection against US rule in 1905; and in Hawaii following the bombing of Pearl Harbor.

With respect to Lincoln’s unilateral action, Chief Justice Roger Taney ruled it was unconstitutional, saying about the suspension clause: “Congress is of necessity the judge of whether the public safety does or does not require it; and its judgment is conclusive.” Since then, the supreme court has consistently reiterated Taney’s view.

For example, in the wake of the 9/11 attacks, when suspected terrorists were held without trial in Guantanamo Bay, Cuba, Justices Antonin Scalia and John Paul Stevens wrote, “(T)he Constitution’s Suspension Clause … allows Congress to relax the usual protections temporarily.”

It is time for Republican congressional leaders to look in the mirror. Five years ago, Senator Thune claimed that “Republicans believe in … the Constitution, and that’s what dictates what happens.” Similarly, Speaker Johnson’s website proudly proclaims, “Each branch of government must adhere to the Constitution, and… Congress must faithfully perform its constitutional responsibility …”

They should live up to those pronouncements and heed Story’s admonition that “the practice of arbitrary imprisonments has been, in all ages, the favorite and most formidable instruments of tyranny.” Now would be a good time for them to tell the president that they will not allow him to ignore the constitution and usurp a power that it assigns exclusively to Congress.

• Austin Sarat, William Nelson Cromwell professor of jurisprudence and political science at Amherst College, is the author or editor of more than 100 hundred books, including Gruesome Spectacles: Botched Executions and America’s Death Penalty