(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .



Habeas Corpus Is Not a “Privilege”, it's a RIGHT. [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2025-05-13

Nearly five days have passed since Stephen Miller, a senior advisor to President Donald Trump, stood before reporters on May 9, 2025, and threatened to dismantle one of the cornerstones of American liberty. His words were chilling:

“The Constitution is clear, and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So … that’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.” — Stephen Miller

The media has replayed this clip ad nauseam, dissecting its implications, but what’s been largely overlooked is the dangerous ideology it exposes. For Miller and his allies, the Constitution is not a binding covenant but a collection of loopholes to be exploited. By calling habeas corpus a “privilege,” they equate the right to challenge unlawful detention with a revocable perk, like a parking permit. This is not a mere rhetorical misstep—it’s a deliberate misreading of constitutional language to justify authoritarian overreach.

The Constitution’s text is where Miller’s argument begins, and it’s where it falters. Article I, Section 9, Clause 2 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.” At first glance, the word “privilege” might seem to support Miller’s framing, but this is a linguistic trap. In the 18th century, when the Constitution was drafted, “privilege” did not carry today’s connotation of a discretionary benefit, like a club membership or a driver’s license. It referred to a fundamental legal right or protection, often inalienable, granted by law or custom. The “Great Writ” of habeas corpus, rooted in English common law and codified in the Magna Carta, is precisely such a right—a safeguard ensuring that no one, citizen or non-citizen, can be detained without judicial review. To call it a “privilege” in the modern sense is to distort its meaning, stripping it of its constitutional weight. This sleight of hand is emblematic of the Trump administration’s broader strategy: scouring the Constitution and U.S. Code for any word or phrase that offers the slightest foothold, building flimsy legal arguments atop a house of cards, and hoping to move faster than the famously slow arc of justice.

Miller’s threat to suspend habeas corpus stems from the administration’s frustration with federal courts that have repeatedly blocked their aggressive immigration policies. The administration has leaned heavily on the claim that illegal immigration constitutes an “invasion,” invoking the Suspension Clause to bypass judicial oversight. But this argument has been dismantled by the judiciary. In February 2024, a federal district court in Texas ruled that “surges in immigration do not constitute an ‘invasion’ within the meaning of the Constitution.” In early May 2025, three federal judges, including U.S. District Judge Fernando Rodriguez, Jr., in South Texas, reaffirmed this, rejecting the administration’s attempt to use the Alien Enemies Act to justify mass detentions by claiming an “invasion.” The Supreme Court has consistently held that habeas corpus extends to immigrants and foreigners detained by the U.S. government, emphasizing that “invasion” refers to armed hostility or military incursion—not individuals overstaying visas or crossing borders.

Historically, suspending habeas corpus has been a rare and tightly constrained act. It has occurred only four times in U.S. history: during the Civil War under President Abraham Lincoln, in South Carolina during Reconstruction to combat the Ku Klux Klan, during a 1905 insurrection in the Philippines, and in Hawaii after the Pearl Harbor attack in World War II. Each instance involved clear threats to national security—rebellion or martial conflict—not immigration disputes. Even Lincoln’s unilateral suspension during the Civil War sparked fierce controversy, with Chief Justice Roger Taney ruling in Ex Parte Merryman that only Congress, not the president, has the authority to suspend the writ, as the power resides in Article I, which governs congressional powers. Legal scholars like Georgetown University Law Center professor Steve Vladeck have underscored that “the near-universal consensus is that only Congress can suspend habeas corpus,” and any executive attempt to do so unilaterally would be “per se unconstitutional.”

The hypocrisy of Miller’s stance is staggering. Imagine if President Barack Obama or Joe Biden had suggested suspending habeas corpus to advance a progressive agenda, such as detaining opponents of healthcare reform. The outcry from the same conservative factions now nodding along with Miller would have been apocalyptic. These are the same voices that shrieked like “ruptured ducks” over the Affordable Care Act, decrying it as government tyranny. Yet, when it comes to stripping away a constitutional right to expedite deportations, many Republicans remain conspicuously silent. Senator Thom Tillis of North Carolina, one of the few GOP voices urging caution, warned of “unintended consequences,” but the party’s broader inaction speaks volumes. For Miller and his allies, suspending habeas corpus is a tool reserved for their side’s agenda, a power they’d never tolerate in the hands of their opponents.

This linguistic and legal gamesmanship—twisting “privilege” to mean “optional” and “invasion” to mean “immigration”—reveals a deeper contempt for the rule of law. Miller’s remark that the decision to suspend habeas corpus “depends on whether the courts do the right thing or not” is a thinly veiled ultimatum: comply with the administration’s wishes, or face an unconstitutional power grab. As New York University Law School professor Stephen Gillers observed, this approach is an “attempt to do an end run around checks and balances,” undermining the judiciary’s role as a co-equal branch of government.

Yet, the public’s response to this threat has been disturbingly subdued. Most Americans seem to trust that even the most fervent Republican judges would strike down any attempt to suspend habeas corpus before the ink on such an order could dry. This confidence is not unfounded—recent judicial rulings against the administration’s overreach, including those rejecting the Alien Enemies Act, demonstrate the judiciary’s resilience. But complacency is a dangerous bet. Normalizing rhetoric that treats constitutional rights as negotiable erodes the foundation of democracy. If we accept that habeas corpus can be suspended on a whim, what’s next? The First Amendment? The Fourth? The muted reaction risks emboldening those who view the Constitution not as a sacred covenant but as a menu of options to be cherry-picked when convenient.

[END]
---
[1] Url: https://www.dailykos.com/stories/2025/5/13/2322017/-Habeas-Corpus-Is-Not-a-Privilege-it-s-a-RIGHT?pm_campaign=front_page&pm_source=trending&pm_medium=web

Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.

via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/

You are viewing proxied material from magical.fish. The copyright of proxied material belongs to its original authors. Any comments or complaints in relation to proxied material should be directed to the original authors of the content concerned. Please see the disclaimer for more details.