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The headline read “Frustrated by Courts, Trump Weighed Suspending a Constitutional Right.” It teased the story like this: “Secret memos show that the White House debated last year, to a greater degree than previously known, whether to limit habeas corpus rights for undocumented immigrants.”
What follows is an outrageous attempt, even though it ultimately failed, at least for now, to shatter firmly established constitutional rights and protections. In sharing this story, The New York Times’ Maggie Haberman and Jonathan Swan are giving us a peek at their forthcoming book. Leaving aside, for the moment, the inevitable debate over whether journalists have an obligation to report in real time as opposed to holding their most interesting revelations for later publication, their reporting in this story puts together some previously known or suspected information with new details to provide detailed support for understanding this administration as a threat to democratic ideals.
On April 29, 20205, A confidential memo written by White House staff secretary Will Scharf, who is a lawyer, warned Trump chief of staff Susie Wiles that a plan to suspend habeas corpus for unauthorized immigrants was in the works. Haberman and Swan write that it was “careful and lawyerly but amounted to a warning against end-running the rule of law.”
Habeas corpus is the legal right to challenge government-imposed confinement. The Latin phrase roughly translates to “you shall have the body,” and the legal doctrine brings people to court to require the government to justify why an individual is in custody—regardless of citizenship status. In other words, it’s the basic check that prevents government from locking people up indefinitely without sufficient reason. It’s a foundational protection against “disappearing people”. Habeas is the heart of due process.
Its constitutional roots are in Article I, Section 9, which prohibits interfering with the right of habeas corpus, noting that it “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Its origins go back to England and the Magna Carta. And it is the law—something this administration and this president have shown casual disregard for at times, frequently with impunity, so the fact that this instance drew high level concern signifies how truly shocking the ideas were.
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Habeas has been suspended only a few times in our nation’s history, and only in genuine emergencies; never as a pretext or with a deliberate intent to circumvent people’s legal rights for political purposes. It happened during the Civil War, during Reconstruction in nine South Carolina counties to combat white supremacist Klan violence, and after 9/11 for enemy combatants held at Guantánamo. Suspension always generates significant legal and political controversy, even in these emergency settings. No surprise that it did here.
The Times reports that “Trump and some members of his team wanted to test how far the emboldened president’s authority could be pushed, setting off previously unreported internal struggles over where the limits should be.” That’s a polite way of saying they wanted to suspend habeas so people they were trying to deport couldn’t take advantage of it, something they were fully entitled to do. In his memo, Scharf cautioned Wiles that suspending habeas is only available in the face of rebellion or invasion and that courts “have almost uniformly held that only Congress can do it.” (The “almost” is because of Lincoln suspended habeas during the Civil War, not Congress, which drew dissent from Judge, later Justice, Taney, but the issue was never fully resolved).
The Supreme Court had already weighed in to confirm Scharf’s caution. By early April in the J.G.G. case, even as it permitted the government to use the Alien Enemies Act to deport Venezuelans who were in the U.S. without legal status, the Justices made it clear detainees could use habeas to challenge removal. The administration was frustrated by it because it slowed down deportations and the drive for large numbers they could tout publicly.
Scharf also wrote a memo to warn against invoking the Insurrection Act to deploy troops on American streets for use against protestors exercising their First Amendment rights against Trump’s mass deportation policy. The reporting says JD Vance, who is a lawyer, pushed to invoke it shortly after a federal agent shot and killed Alex Pretti on the streets of Minneapolis without justification.
The push for suspending habeas came from Stephen Miller. Miller is not a lawyer and he frequently seems to view the law as an obstacle to be overcome rather than an essential element of American democracy. That view appears to be what galvanized the ultra-conservative Scharf. No closet liberal, he contributed to the legal work that allowed Trump to outrun the Mar-a-Lago criminal case.
The reporting here is not completely clear, but it appears that Scharf was motivated by the fear that if the administration pushed too far after the bad result for them in the J.G.G. case, the courts, and especially the Supreme Court, would shut them down, limiting their ability to make other changes. That makes sense, since Scharf appears to subscribe to notions of an expansive unitary executive. The report in the Times suggests that, “Their worry was self-inflicted damage: Weak legal arguments would invite sweeping rulings against the administration, and those rulings would constrain everything that came after.”
So, this was not a matter of constitutional principle; it seems to have come down to expediency—how much the administration could get away with before it set off one of the other two branches of government that could counter it. The administration used other tools to make it difficult for detained immigrants to enforce their legal rights and to tamp down on protests, some ultimately disallowed by the courts, others unAmerican. There is not a day that goes by where I do not think about Renee Good, Alex Pretti, and the others.
The reporting clarifies that Miller’s role extended to advocating for the suspension of basic rights, and that he was narrowly run off. The same appears to be true for the Vice President. The risk is not over. It is a warning for what could be coming, one that cannot be ignored.
Every White House tries to prevent its internal disputes and debates from being aired in public. With this White House, that airing is essential, as the court of public opinion is frequently the only or the best guardrail. Knowing this, the administration has made a concerted effort to keep its secrets. Considered and rejected in that past moment, moves to suspend habeas and invoke the Insurrection Act could easily be reconsidered if the relevant actors in the White House develop concerns about their hold on power in advance of the upcoming election. That makes it incumbent on all of us to stay informed.
Authoritarian movements depend on people forgetting what happened yesterday. One of the things we do together here is keep a long memory. If that matters to you—if you want reporting grounded in documents, law, and context, and a community committed to paying attention—then I hope you'll join us. We have work to do.
We’re in this together,
Joyce
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