Since Immigration Is an ‘Invasion,’ a Top Trump Adviser Says, the President Might Suspend Habeas Corpus
The writ of habeas corpus, a right deeply rooted in English common law and recognized by the U.S. Constitution, allows people nabbed by the government to challenge their detention in court. That complicates President Donald Trump’ immigration crackdown. Last month, for example, the U.S. Supreme Court unanimously ruled that foreign nationals who allegedly are subject to immediate deportation as “alien enemies” have a right to contest that designation by filing habeas petitions. And foreign students have used the writ to challenge the claim that they are “subject to removal” because their political opinions undermine U.S. foreign policy interests.
Stephen Miller, the White House deputy chief of staff for policy, has a potential solution to this inconvenience. Last Friday, he told reporters that Trump is “actively looking at” suspending habeas corpus to facilitate the deportation of unwanted foreigners. “The Constitution is clear,” Miller said. “The privilege of the writ of habeas corpus can be suspended in a time of invasion.”
There are a few problems with Miller’s reading of the Constitution. The clause to which he refers says “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.” Although President Donald Trump views unauthorized immigration as an “invasion,” judges have been appropriately skeptical of that description. And while Trump might believe judicial review in this context is inconsistent with “the public safety,” that assessment is likewise controversial. Finally, the power to suspend habeas corpus has long been understood as belonging to Congress, not the president.
To justify his March 15 proclamation invoking the Alien Enemies Act (AEA) against suspected members of the Venezuelan gang Tren de Aragua, Trump averred that their illegal entry and criminal activities constituted an an “invasion or predatory incursion against the territory of the United States.” In a May 1 decision rejecting that interpretation of the 227-year-old law, Fernando Rodriguez Jr., a Trump-appointed federal judge in Texas, said “the historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms.” Five days later, Alvin Hellerstein, a federal judge in New York, agreed that the AEA “was not validly invoked by the presidential proclamation.”
Both judges noted that Trump’s understanding of “invasion or predatory incursion” is inconsistent with the law’s historical context and with contemporaneous usage, including the definition of “invasion” reflected in dictionaries, correspondence among the Founders, and the Constitution itself. The Constitution “references ‘invasion’ on two occasions, each time in a military context,” Rodriguez noted.
Article IV, Section 4, “requires the United States to ‘protect each of [the states] against Invasion,” and “at least one cou
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