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 AEA, 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 court has concluded that 'invasion' under this
provision requires 'armed hostilities' and does not include mass immigration," Rodriguez wrote. "Article I, Section 9 prohibits Congress from suspending the writ of habeas corpus, 'unless when in Cases of Rebellion or Invasion the public Safety may require it.' Although courts have not had to define what constitutes an invasion supporting the suspension of the writ, the use of 'Rebellion,' which refers to an armed uprising, suggests that both terms refer to a military attack, either from within or without. In addition, the Constitution in Article I, Section 10, Clause 3 also provides that a state may not 'engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.' This use of the related term, 'invaded,' expressly concerns warfare."

George Mason University law professor Ilya Somin highlights "an additional reason to conclude that [Trump's] broad interpretation of 'invasion' is at odds with the original meaning of the Constitution": "If illegal migration and cross-border drug smuggling are 'invasion,' that means we are in a state of invasion at virtually all times, since these activities have been ubiquitous for so long as we have had the War on Drugs and significant migration restrictions….Given the importance that the Founders assigned to the writ of habeas corpus (British violations of the writ were among the major grievances that led to the American Revolution), they would not have created a system where the federal government could suspend it at any time."

If equating "mass immigration" with an "invasion" is dubious, so is the argument that it poses a threat to "the public safety" that "require[s]" suspension of the right to habeas corpus. That part of the Suspension Clause is "not just window-dressing," Georgetown University law professor Steven Vladeck writes. "The whole point is that the default is for judicial review except when there is a specific national security emergency in which judicial review could itself exacerbate the emergency. The emergency itself isn't enough."

Even if Trump's judgments were arguably correct, the Suspension Clause's placement and history strongly suggest the call is not his to make. "It is ultimately up to Congress whether the writ should be suspended (at least during times of peace)," says Case Western Reserve University law professor Jonathan Adler. "This is clear from the Constitution's text and structure. The suspension clause is in Article I, section 9, [which includes] several enumerated constraints on legislative power. It is an interesting question whether Courts can review a legislative suspension of the writ, but I think it is relatively clear that the Executive cannot do so unilaterally."

Abraham Lincoln's unilateral suspension of habeas corpus during the Civil War was highly controversial, although Congress ultimately ratified it. Aside from that episode, the National Constitution Center says, the writ has been suspended just three times, in all cases by Congress: "in eleven South Carolina counties overrun by the Ku Klux Klan during Reconstruction; in two provinces of the Philippines during a 1905 insurrection; and in Hawaii after the bombing of Pearl Harbor." Although the Suspension Clause "does not specify which branch of government has the authority to suspend the privilege of the writ," the center notes, "most agree that only Congress can do it." Vladeck calls that position "the near-universal consensus."

In the 2004 case Hamdi v. Rumsfeld, Adler notes, "there was unanimous agreement that Congress had not suspended the writ," so "the question was whether the federal government could detain [Yaser Esam] Hamdi (an American citizen alleged to be an enemy combatant captured in Afghanistan) in the United States without putting him on trial." In a dissent joined by Justice John Paul Stevens, Justice Antonin Scalia (whom Trump has described as his model for Supreme Court appointments) said the answer was no.

"Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime," Scalia wrote. "Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, § 9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge."

While the other justices "did not agree with Justice Scalia on the merits," Adler adds, "a majority of the justices indicated that they too believe[d] it is for Congress to determine whether the writ should be suspended." Consider what Justice Sandra Day O'Connor said in the plurality opinion:

All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. Only in the rarest of circumstances has Congress seen fit to suspend the writ. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law….Unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions.

In short, Adler says, "unless Congress suspends the writ, it remains a check on the Executive." That claim, he notes, "would be nonsensical if the Executive could suspend the writ unilaterally."

Miller did not say Trump would definitely try to do that. "It's an option we're actively looking at," he said. "A lot of it depends on whether the courts do the right thing or not." In other words, Trump may be willing to abide by judicial review as long as it poses no obstacle to his agenda.

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