Stephen Miller's Argument for Suspending Habeas Corpus Is Legal Garbage

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http://www.smirkingchimp.com/thread/marjorie-cohn/113832/stephen-miller-s-argument-for-suspending-habeas-corpus-is-legal-garbage

Stephen Miller’s Argument for Suspending Habeas Corpus Is Legal Garbage
by Marjorie Cohn | May 13, 2025 - 5:27am

— from Truthout

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Only Congress, Not the President, Has the Power to Suspend Habeas Corpus

Contrary to Miller’s assertion, only Congress — not the president — can suspend habeas corpus, and only in rare circumstances. “Although [the Suspension Clause] does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I,” Antonin Scalia wrote in dissent in the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld. (Article I of the Constitution lists the powers of Congress).

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There Is No “Invasion”

Miller is also wrong because there is no “invasion” currently occurring in the United States, despite several of Donald Trump’s January 20 executive orders declaring that there is an invasion of the southern U.S. border.

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In February 2024, a federal district court in Texas rejected the equating of immigration with an invasion, concluding that “surges in immigration do not constitute an ‘invasion’ within the meaning of the Constitution.”

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For now, federal judges are serving as speed bumps in Trump’s cruel and illegal war on migrants. Trump has packed the Supreme Court with radical right-wingers who may well overturn some of those lower court rulings. But Trump has already defied the high court’s ruling that his administration facilitate the return of Kilmar Abrego Garcia from El Salvador. We can only hope that the “justices” on the high court maintain their reverence for the Constitution, even though the president does not.