Future Retirement Success
  • Politics
  • Business
  • Investing
  • Stocks
  • Politics
  • Business
  • Investing
  • Stocks

Future Retirement Success

Investing

Miller Says We Can Suspend Habeas Corpus Because of “Invasion”— But His Own Words Belie That Theory.

by May 19, 2025
May 19, 2025
Miller Says We Can Suspend Habeas Corpus Because of “Invasion”— But His Own Words Belie That Theory.

Stephen Richer

Earlier this month, White House Deputy Chief of Staff Stephen Miller said that the Trump administration is “actively looking at” suspending the writ of habeas corpus for suspected illegal immigrants. 

The constitutionally enshrined right of habeas corpus traces its origins back to the Magna Carta and it guarantees that those detained by the United States government can challenge that detention in court.

In Federalist Paper 84, Alexander Hamilton wrote that the “establishment of the writ of habeas corpus” is a “greater security to liberty and republicanism” than nearly any other provision in the Constitution. 

Nearly 200 years later, the United States Supreme Court described the writ as “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”

Given the importance of habeas corpus in protecting the rights of the individual from the abuse of government power, it should come as no surprise that the Cato Institute has consistently defended the writ. In 2007, David Boaz listed it among the rights most “indispensable to securing all the others.” My criminal procedure professor, libertarian luminary, and Cato adjunct scholar Richard Epstein extolled the importance of the writ in 2008 and reminded readers of The New York Times that the writ extends to all “persons,” not just citizens. 

Miller and the Trump administration base their alleged authority on Article 1, Section 9, Clause 2 of the US Constitution, which reads, “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 indeed, this provision, the “suspension clause,” has been used four times in US history. Once during the Civil War, once during Reconstruction when the Ku Klux Klan overran parts of South Carolina, once in the Philippines during a rebellion by the native population against US presence, and once immediately after the Japanese bombed Pearl Harbor.

In each instance, however, the president acted only with the approval of Congress—although in the case of Abraham Lincoln, who faced the outbreak of an actual civil war, the approval was given belatedly.

As my Cato colleague Mike Fox recently said on TV, if Miller and Trump try to suspend habeas corpus, they will likely lose in the courts. 

Among other things, the government would have to overcome Justice Antonin Scalia’s opinion in Hamdi v. Rumsefeld (“Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I”). As well as both an unfavorable online article and an unfavorable law review article from Justice Amy Coney Barrett (“it does require Congress to decide … that an invasion or rebellion has occurred and that protecting the public safety may require the exercise of emergency power.”)

Additionally, Professor Marjorie Cohn of the Thomas Jefferson School of Law points out that the government will have to contend with four recent rulings from federal district courts that make clear that we are not currently suffering a “rebellion or invasion.” One decision from Texas stated, “surges in immigration do not constitute an ‘invasion’ within the meaning of the Constitution.” And a federal judge in Colorado called the government’s definition of invasion “unpersuasive.” 

There’s no shortage of highly detailed legal takedowns of Miller’s comment. For example, see Georgetown University Law Professor Steve Vladeck’s article, Jacob Sullum in Reason, Bill Galston at the Wall Street Journal, or a piece in The New Yorker by Ruth Marcus.

I have nothing to say about the law beyond what Vladeck and others have already said.

But I will point out an amusing paradox that damages the government’s interests here, as well as in the Alien Enemies Act cases. At the same time that the government is making legal arguments that we are suffering an “invasion” and therefore can suspend habeas corpus or invoke the Alien Enemies Act, the government is also trumpeting that it has effectively put an end to illegal immigration.

In February, Miller claimed that illegal border crossing had decreased by 95 percent in the first 11 days of Trump’s second term, calling it “the biggest and most successful change in any area of law enforcement that this nation has ever seen.”

That same month, President Trump celebrated by saying that border crossings were “the lowest ever recorded.”

“Border czar” Tom Homan claimed that in the first two weeks of February 2025, illegal migrant encounters numbered only 359 per day, down from 4,800 per day in 2024.

So, even if we accept that large numbers of illegal border crossings constitute an “invasion”—the courts don’t—then the administration is still on shaky legal grounds because it tries to have its cake and eat it too. Which is it? Are we being invaded? Or has the administration already largely secured the border?

My recommendation: drop the threats, respect long-established legal rights, work with Congress to improve our immigration policies and border security, and then brag about that if successfully accomplished.

But I won’t hold my breath.

0
FacebookTwitterGoogle +Pinterest
previous post
‘My job is to grow this, not run it’: Paul Avins on why scale-up success starts with identity
next post
Iranian president calls for negotiation and dialogue as nuclear talks continue

You may also like

Resist the Allure of Laffer Curve Logic

November 21, 2023

DOGE’s IRS Cuts in Perspective

May 29, 2025

Americans Say they Like “Affirmative Action” but Yet...

August 8, 2023

Reining in Trillions of Executive Spending

September 24, 2024

WATCH: An American Small Business-Owner Explains Why President...

April 24, 2025

The U.S. Experience in Colombia Is a Terrible...

September 11, 2023

Risk of Another India-Pakistan Military Conflict

April 28, 2025

Friday Feature: Bramblewood Learning Community

August 18, 2023

Marijuana Should Be De-Scheduled, Not Re-Scheduled

August 30, 2023

Unpacking the Tariffs-Inflation Debate

March 24, 2025

    Get free access to all of the retirement secrets and income strategies from our experts! or Join The Exclusive Subscription Today And Get the Premium Articles Acess for Free

    By opting in you agree to receive emails from us and our affiliates. Your information is secure and your privacy is protected.

    Recent Posts

    • HMRC inheritance tax investigations surge 37% as treasury seeks to plug revenue gap

      June 9, 2025
    • Believ secures £300m to roll out 30,000 public EV charge points across the UK

      June 9, 2025
    • US and China hold London talks to ease trade war tensions

      June 9, 2025
    • British fathers urged to join landmark ‘dad strike’ over poor paternity leave

      June 9, 2025
    • IVF parents should have right to paid fertility leave, says GMB union

      June 9, 2025
    • Reform UK clashes with Bank of England over interest payments to lenders

      June 9, 2025

    Categories

    • Business (8,158)
    • Investing (2,019)
    • Politics (15,571)
    • Stocks (3,136)
    • About us
    • Privacy Policy
    • Terms & Conditions

    Disclaimer: futureretirementsuccess.com, its managers, its employees, and assigns (collectively “The Company”) do not make any guarantee or warranty about what is advertised above. Information provided by this website is for research purposes only and should not be considered as personalized financial advice. The Company is not affiliated with, nor does it receive compensation from, any specific security. The Company is not registered or licensed by any governing body in any jurisdiction to give investing advice or provide investment recommendation. Any investments recommended here should be taken into consideration only after consulting with your investment advisor and after reviewing the prospectus or financial statements of the company.

    Copyright © 2025 futureretirementsuccess.com | All Rights Reserved