Threat to Suspend Habeas Corpus Latest Evidence How Immigrant “Invasion” Lie is Central to Assault on Constitutional Pillars

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Washington, DC — Embedded in Stephen Miller’s chilling comments that the Trump administration is considering suspending the writ of habeas corpus is another reminder that their broader assault on core constitutional pillars rests on the dangerous “invasion” lie. Miller stated (emphasis added):

“The privilege of the writ of habeas corpus can be suspended at a time of invasion, so it is an option we’re actively looking at…”

The administration’s assertion that we are in the midst of an immigrant “invasion” is not only a dangerous and false conspiracy theory that has inspired multiple anti-immigrant mass-shootings, but also is an assessment directly undercut by this administration’s own intelligence agencies.

Despite the national security community’s dissension from the claim, the Trump administration is doubling down on its “invasion” assertion. These claims have served as the legal justification for several elements of their broader assault on core pillars of our democracy, including their invocation of the “Alien Enemies Act of 1798,” which has been used to summarily deport Venezuelans and other nationals, to the infamous El Salvador mega-prison, triggering a clash over issues such as the separation of powers and due process.

According to Vanessa Cárdenas, Executive Director of America’s Voice:

“The ‘invasion’ lie is a very dangerous claim at the heart of this administration’s anti-immigrant agenda. This falsehood forms the foundation of the administration’s effort to weaponize immigration in order to seize new executive powers and endanger the rights of every American. The discussion about suspending habeas corpus shows an administration on defense and reeling and seeking to escalate the threats and the scope of its assault on core democratic pillars. No matter your politics, this should raise alarms among all Americans.”

For more on the larger stakes and implications of Stephen Miller’s comments, below are excerpts from the NBC News story, “Trump admin’s threat to suspend core U.S. legal right sparks outcry and alarm,” which notes:

“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.’

Other legal scholars strongly challenged Miller’s assertion that the president could unilaterally suspend habeas corpus … Vladeck and three other experts said that a legal consensus has existed for decades that only Congress has the authority to suspend the right. They noted that Article 1 of the Constitution, which describes Congress’s powers, states, ‘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.’

… Ilya Somin, a [libertarian] law professor at George Mason University, called Miller’s claim that the president has the power to unilaterally suspend habeas corpus false. ‘Habeas corpus can only be suspended under the Constitution in times of invasion or insurrection. None of that is happening now,’ said Somin, a libertarian legal scholar and the Simon Chair of Constitutional Studies at the libertarian Cato Institute. ‘And it can only be done by Congress, not the president acting on his own.’

Somin and Jonathan Adler, a law professor at Case Western Reserve University, cited a 2004 Supreme Court ruling in which conservative Justice Sandra Day O’Connor concluded that only Congress has the authority to suspend habeas corpus. O’Connor also emphasized that habeas corpus has acted as a ‘critical check’ on the executive branch’s power to unlawfully detain individuals in the U.S.

…Supreme Court Justice Antonin Scalia, a conservative icon, agreed in an opinion of his own that the power to suspend habeas corpus rests solely with Congress.”