The White House is clearly frustrated in the wake of several legal setbacks: Donald Trump and his team keep trying to circumvent the law as part of a broader deportation agenda, and judges keep telling the president and his lawyers what they don’t want to hear.
Stephen Miller, a White House deputy chief of staff, told reporters on Friday that “Marxist judges” have launched a “judicial coup” that “can only be understood as an attack on democracy.” In case these hysterical comments weren’t quite enough, Miller added that White House officials are “actively looking” at possibly suspending the writ of habeas corpus.
For reality-based observers, the rhetoric raised obvious alarms. NBC News reported:
Legal experts and Democrats expressed growing alarm over the weekend that Trump administration officials are openly discussing unilaterally suspending habeas corpus — a bedrock American legal right — without the approval of Congress. The writ of habeas corpus, which dates back centuries, grants anyone detained in the U.S. the right to see a judge, challenge the government’s evidence against them and present a defense.
If the White House were to suspend the bedrock legal principle, the Trump administration would have the power to lock people up without charges and prisoners would not have the ability to contest their incarceration.
Steve Vladeck, a constitutional law professor at Georgetown University, described Miller’s statement on Substack as “factually and legally nuts” and called it the “most remarkable (and remarkably scary) comments about federal courts that I think we’ve ever heard from a senior White House official.”
Any chance congressional Republicans might come to a similar conclusion? Evidently not.
Senate Majority Whip John Barrasso, for example, appeared on NBC News’ “Meet the Press” and dodged multiple questions about whether he would support suspending habeas corpus for undocumented immigrants. The Wyoming Republican did, however, take a moment to condemn “radical” judges standing in the way of the president’s deportation agenda — a group of judges that includes Trump appointees whom Barrasso himself voted to confirm.
Around the same time, Republican Rep. Michael McCaul of Texas, the chair of the House Foreign Affairs Committee, appeared on CBS News’ “Face the Nation” and conceded that suspending habeas would be “a very extreme measure.” He quickly added, however, “I think the courts are going to decide this one, as to whether this invasion, in fact, constitutes what would be a state of war. Some would say it would.”
Perhaps, but recent history suggests otherwise. As The Washington Post reported, “[T]he administration keeps losing that argument in court — including on Tuesday, when a federal judge said the White House has failed to prove the existence of an ‘invasion’ or another conflict that would justify invoking the Alien Enemies Act to deport Venezuelan migrants.”
The president, however, apparently isn’t giving up. In one of his latest online tirades, published a couple of hours after the Sunday shows wrapped up, Trump falsely claimed, “Our Country has been INVADED by 21,000,000 Illegal Aliens.” As part of the same rant, he added, “Our lawyers should state this FACT when going before the United States Supreme Court, and all other courts.”
He didn’t literally reference the possibility of suspending habeas, but given the broader context, the online statement stood out.