There was a little speculation boomlet a couple of weeks ago when President Trump “promoted” his National Security Adviser Mike Waltz to be the UN Secretary and tasked Secretary of State Marco Rubio with the job temporarily that the name being raised most commonly as a permanent replacement was none other that Senior Adviser Stephen Miller. That idea seemed a little bit strange since Miller has never had a particular interest in global affairs beyond immigration but he has lately been taking on a more public role and commenting on a wide range of issues so perhaps he had decided to expand his role. We haven’t heard much about this idea since it was first floated so perhaps it was just a trial balloon that fizzled.
It was hard to imagine Miller giving up his life’s work to expel as many non-white people from America as possible and that’s a full time job in this administration. In the wake of the shocking propaganda the administration put out celebrating their deportation ritual of alleged gang members to the notorious Salvadoran gulag, we are now seeing story after story popping up all over local and national news, social media and influential podcasts about violent ICE raids of homes and businesses, ordinary people being snatched up when they show up for their legal hearings, violent car stops, and even the arrest of judges and politicians. Very few of the people being imprisoned are gang members or criminals.
It’s taking a toll on the president’s approval rating. The latest round of polls showed him underwater across the board on these policies. But this is all Stephen Miller’s plan and he is undaunted. As I wrote a couple of weeks ago discussing his decision to use the Alien Enemies Act of 1789, Miller understood that what they were intending to do was unprecedented. They are quite seriously looking to deport millions of people.
Miller knew that the courts were a barrier. He was the architect of the ill-fated travel ban in the first administration that was struck down (and later watered down) by the courts and understood that the president was going to have to be very aggressive and frankly, provocative. They needed to assert presidential authority with total confidence and ensure that the Supreme Court understood they were willing to test their dominion as the final word on what the law is.
We’re only part way through that process. So far they have not blatantly defied the courts but they are working them around the edges. Miller is the most vociferous in publicly claiming that the plain words of a Supreme Court order mean the opposite of what they actually say, which is almost disorienting to listen to. The best example is his rant as he stood in the Oval Office and proclaimed that the high court had ruled 9-0 in favor of the administration’s deportation of Kilmar Abrego-Garcia when it had actually been the opposite.
(You can read the order here.)
In a different case pertaining to the deportation flights of Venezuelans to El Salvador the Supreme Court ruled that actions on behalf of detainees must be brought in the districts where the prisoners are detained, and the intended deportees must be notified in time that they can petition for a writ of habeas corpus. In other words, they must be allowed a hearing before they can be kidnapped and sent to the Salvadoran gulag.
So far, judges in three districts have ruled that the Alien Enemies Act on which the administration’s policy is predicated, has been inappropriately invoked to justify this policy because of the fatuous assertion that we have been invaded by foreign gang members. That is not the plain meaning of “invasion” in this context. You could just as easily claim that the Beatles should have been deported because of the “British Invasion” of 1964.
The Alien Enemies Act isn’t the only trick Miller has up his sleeve, however. Last Friday he telegraphed another approach.
Yes, despite the fact that the Supreme Court did rule in that previous case that potential deportees have a right to petition for a writ of habeas corpus, Miller is now looking at invoking the suspension clause of the 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.
CNN reported that Trump has been involved in the discussions about suspending habeas corpus noting that he hasn’t said anything specifically but when asked about steps he could take to combat nationwide injunctions against his actions on deportation Trump said:
“There are ways to mitigate it and there’s some very strong ways. There’s one way that’s been used by three very highly respected presidents, but we hope we don’t have to go that route. But 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.”
Miller and Trump habitually degrade and demean any judges that rule against them and Miller has been especially crude about it routinely calling them “communists” But he may have miscalculated when he said “look, a lot of it depends on whether the courts do the right thing or not.” As law professor Steve Vladek (whose legal rundown of this issue is extremely informative) observed:
He’s suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose. That’s not, and has never been, a viable argument for suspending habeas corpus. Were it otherwise, there’d be no point to having the writ in the first place—let alone to enshrining it in the Constitution.
One assumes that even if the judiciary is only operating out of self-preservation they might find that to be a threat worth pushing back on. But you never know.
Law Professor Leah Litman, who has written a critique of the Roberts Court due out in a couple of days called Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes, appeared on MSNBC a couple of days ago and observed that while the Chief Justice may have recently commented in public that the job of the judiciary is to check the “excesses” of the other branches, it pays to remember that he is the one who wrote the atrocious immunity decision and has long been a proponent of the Unitary Executive Theory. So it’s entirely possible that Stephen Miller won’t actually have to go nuclear and have Trump suspend habeas corpus after all. But if the court decides that maybe invoking the Alien Enemies Act wasn’t kosher, it’s pretty clear that Miller is prepared to make that move. And who knows what other cards he has left to play after that? He’s prepared for a very long siege.
Oh, and by the way. If you think congress might step in since they are required to ok the suspension of Habeas corpus? Probably not:
Salon