And they're still looking for ways to keep the courts out of immigration cases.
Harry Litman at Talking Feds:
We learned earlier this week that we narrowly averted an effort by Trump and Stephen Miller to suspend habeas corpus. Millerâs brainstorm was utterly tyrannical and anti-constitutional. More on that below. Miller was reacting to the Supreme Courtâs April 2025 ruling in the Alien Enemies Act cases, which held that the detainees were entitled to challenge their detentions in court via habeas corpus before being expelled. That bare process was too much for Miller, the deputy chief of staff and, by all accounts, the mastermind behind the deportation campaign.
As reported by Maggie Haberman and Jonathan Swan, Miller directed the Justice Department to research the legal basis for suspending habeas corpus. Trump apparently was receptiveâhe had been asking advisers about Lincolnâs suspension of habeas during the Civil War for a source of historical cover. Millerâs scheme for evading the Courtâs ruling was to have the president simply declare that the immigration situation at the southern border constituted an âinvasionâ within the meaning of the Constitution. On that basis, immigrants could be denied any access to a court at all. They could simply be made to disappear until they resurfaced in whatever country the United States chose to send them to. No hearing. No judge. No process of any sort.
Millerâs crazed and radical idea was narrowly beaten back within the administration. The unlikely hero was Will Scharf, the White House staff secretary. Scharfâs conservative bona fides and dedication to Trump are beyond reproach. Harvard-trained, he had helped develop the legal arguments in the Mar-a-Lago classified documents case as well as the presidential immunity case that prevailed at the Supreme Court. Scharf sent a memo to Trumpâs Chief of Staff, Susie Wiles, laying out the collision course that Miller was recklessly pursuing. Scharf did not invoke the sanctity of immigrant rights or lecture about democratic norms. His argument was purely pragmatic: this will get struck down, and when it does, the ruling will hobble everything that comes after. Still, the memo did not immediately carry the day.
Miller, for one, remained bullish on the idea. Having first tried to charm Scharf and failed, he had come to see the staff secretary as an obstacle to be routed around rather than a colleague to be persuaded. The day after Scharfâs memo landed on Wilesâs desk, Trump surfaced the idea at a cabinet meeting, obliquely referencing âthree very highly respected presidentsâ and their options for going around the courts.
[...] Habeas corpus has been suspended four times in American history: during the Civil War, Reconstruction, World War II in Hawaii in the wake of Pearl Harbor, and in the 1905 insurrection in the Philippines. Three of those four suspensions were by Congress. The one exception was Lincoln, at the outset of the Civil War, acting during a long congressional recess with Confederate troops threatening at the doorstep of Washington itself. Even then, after the courts told Lincoln he had overstepped, he eventually went back to Congress and in 1863 secured legislative authorization.
A report has emerged that white supremacist Stephen Miller and Donald Trump wanted to suspend Habeas Corpus rights for dictatorial reasons on the basis of an âinvasionâ at the US/Mexico Border.
