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To the Trump administration, there’s no such thing as a mere policy problem. Everything, it seems, must be an “emergency,” an “insurrection,” an “invasion.” It’s government by feigned panic, rule by performative hyperbole.
Want to unilaterally impose whopping across-the-board tariffs? No problem: Declare a “national emergency” and invoke the International Emergency Economic Powers Act of 1977 to address trade deficits, reciprocity, and value-added taxes. (You know, real nightmare fuel.) Why settle for boring old economic policymaking when there’s a national emergency to be declared?
In the mood for mass deportations? The administration could choose to do it the old-fashioned way, with due process, and run the deportees through perfunctory proceedings in immigration court before shipping them out. But where’s the drama in that? Better to claim that we’re experiencing an “invasion” or “predatory incursion” under the Alien Enemies Act, which has been previously invoked only during actual wartime, with bullets flying.
Or maybe you’ve got some unruly legal permanent residents voicing objectionable opinions in college newspapers. They, too, could go through the ordinary process of green-card revocation. Or — hear me out — the authorities could dust off an obscure law that allows the secretary of State to deport a noncitizen who poses “potentially serious adverse foreign policy consequences.”
Seemingly undeterred by a string of legal setbacks rejecting hysterical invocations of all manner of dire emergencies, the administration is now openly contemplating an even more drastic step: suspension of the writ of habeas corpus, based on a claim that we’re currently being victimized by — you guessed it — an “invasion” of illegal migrants.
Habeas corpus, at its core, is the right of any person to challenge his detention. The phrase translates roughly to “produce the body” — meaning the government, as the incarcerating entity, has the obligation to bring the detained person into court and establish the basis for locking him up. The concept is both foundational and ancient; it predates the United States of America by hundreds of years, going back to the Magna Carta in the 13th century. We’re talking about a core precept of orderly civilization.
Apparently unimpressed by the historical pedigree, White House deputy chief of staff for policy Stephen Miller stepped before the press late last week and declared that suspension of habeas corpus “is an option that we’re actively looking at” — meaning that any person who is in the U.S. illegally can be removed at the whim of the executive branch, with no judicial process whatsoever. (Miller is not a lawyer, but his cocksure, condescending delivery suggests a second-rate actor tasked with playing one.)
Miller is enormously influential in the White House, and subsequent reporting by CNN confirmed that Trump has been “personally involved” in internal discussions about the potential suspension of habeas corpus. Indeed, just weeks ago, the president suggested as much when he said publicly that “there is one way used successfully by three presidents — all highly respected — and hopefully we don’t have to go that way but there are ways of mitigating it” (referring to illegal immigration).
Let’s start with the Constitution itself, which Miller turned on its head in his announcement. “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,” he expounded. The Constitution does indeed contemplate suspension of habeas corpus but only as a last resort, reserved for the most dire circumstances. The actual constitutional provision provides that “The Privilege of the Writ of Habeas Corpus shall not be suspended” — that’s a restriction, not an open invitation — “unless when in cases of Rebellion or Invasion, the public Safety may require it.” I’ve left the strange, old-timey capitalization intact here because it makes a point: When the Constitution says “Rebellion or Invasion,” it means the real kind.
A quick glance at history bears that out. Habeas corpus has been suspended four times by the U.S. government: during the Civil War by Abraham Lincoln; during Reconstruction, when the Ku Klux Klan forcibly overran certain South Carolina counties; in 1905 in response to a rebellion in parts of the Philippines (which the U.S. was then involved in governing); and in Hawaii after Pearl Harbor in 1941.
This is what the Constitution means by Rebellion and Invasion: armed, strategic wartime takeovers by organized hostile forces. Yet to the Trump administration, the presence of illegal migrants in the U.S. is on the same level. It’s a facially preposterous claim. I’m fine, onboard even, with the notion that we’ve got a problem with illegal migration. But it’s nothing like the Civil War or Pearl Harbor.
Take comfort in knowing that if the president tries to unilaterally suspend habeas corpus, he’ll almost certainly fail. It’s quite clear, given history, legal scholarship, and the Constitution itself, that only Congress can properly suspend the writ. In three of the four prior instances, Congress authorized the suspension of habeas corpus; only Lincoln acted alone, but Congress was in turmoil at the time and ratified the president’s action thereafter. No less a conservative luminary than Justice Antonin Scalia wrote that Congress must authorize any suspension of habeas corpus. And the aforementioned constitutional language delimiting the suspension of habeas corpus appears in Article I — which creates and confers powers on Congress. (The executive branch is Article II.)
The constant wolf-crying is a curious tactic by the Trump administration. It has largely failed thus far in the courts. Most recently, a Trump-appointed federal judge in Texas, Fernando Rodriguez Jr., rejected the president’s contention that the presence of a foreign gang in the U.S. constituted an invasion under the Alien Enemies Act. The administration’s position “exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms,” Judge Rodriguez wrote. (Beyond the obvious definitional stretches, you’d think an administration that prides itself on macho bluster wouldn’t be so quick to yank the alarm bell and declare that we’re under attack and we’re all doomed.)
And the administration’s fascination with exotic statutory curiosities is wildly inefficient. If the executive branch wants to rid the country of illegal migrants, it has plenty of power to do just that: Lock down the border (as the administration has largely done) and use our established Title 8 deportation processes to remove those who are in the country illegally. Yes, due process takes time — although immigration processes can be quite perfunctory — but it’s far more efficient to use garden-variety immigration laws than to invoke and litigate the Alien Enemies Act or other statutory oddities.
The old James Bond trope, memorably parodied in the Austin Powers movies, comes to mind. The evil mastermind inexplicably insists on bizarre, elaborate contraptions — “Sharks with frickin’ laser beams attached to their heads!” — when far simpler methods would do the trick more reliably. But perhaps, for both the Bond villain and the Trump administration alike, the drama itself is the point.
This article will also appear in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at cafe.com.
