Legal experts and Democrats expressed growing alarm over the weekend that Trump administration officials are openly discussing unilaterally suspending habeas corpus \u2014 a bedrock American legal right \u2014 without the approval of Congress.<\/p>\n\n\n\n
The writ of habeas corpus, which dates back centuries, grants anyone detained in the U.S. the right to see a judge, challenge the government\u2019s evidence against them and present a defense.<\/p>\n\n\n\n
But White House Deputy Chief of Staff Stephen Miller downplayed its significance on Friday<\/a>, suggesting that the administration could move to suspend it unilaterally. “That’s an option we’re actively looking at,” Miller told reporters at the White House.<\/p>\n\n\n\n Steve Vladeck, a constitutional law professor at Georgetown University, described Miller\u2019s statement on Substack <\/a>as \u201cfactually and legally nuts\u201d and called it the \u201cmost remarkable (and remarkably scary) comments about federal courts that I think we\u2019ve ever heard from a senior White House official.”<\/p>\n\n\n\n Other legal scholars strongly challenged Miller’s assertion that the president could unilaterally suspend habeas corpus, Latin for \u201cthat you have the body.” Vladeck and three other experts said that a legal consensus has existed for decades that only Congress has the authority to suspend the right.<\/p>\n\n\n\n They noted that Article 1 of the Constitution, which describes Congress\u2019s powers, states, \u201cthe 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.\u201d<\/p>\n\n\n\n Over the weekend, senior Republicans largely declined to answer<\/a> questions about Miller’s threat. Democrats argued that the Trump administration is using its immigration crackdown to undermine the power of the judicial branch, bypass traditional legal safeguards and dangerously increase the power of the president.<\/p>\n\n\n\n \u201cThe one power you cannot give the executive is the power to arbitrarily imprison people who oppose the regime,\u201d Sen. Chris Murphy, D-Conn., said at a Democratic rally in Sarasota, Florida. \u201cToday it may be an El Salvadorian immigrant or a foreign student, but tomorrow it is you or me. The slope to despotism can be slippery and quick.\u201d<\/p>\n\n\n\n President Trump has been personally involved in discussions with the administration about potentially suspending habeas corpus, CNN reported on Saturday<\/a>. He appeared to allude to the issue in a statement to reporters on April 30. <\/p>\n\n\n\n \u201cThere are ways to mitigate it and there\u2019s some very strong ways,\u201d Trump said. \u201cThere\u2019s one way that\u2019s been used by three very highly respected presidents, but we hope we don\u2019t have to go that route.\u201d<\/p>\n\n\n\n The White House did not respond to requests for comment from NBC News. <\/p>\n\n\n\n Trump was most likely referring to Abraham Lincoln and Andrew Johnson, who suspended habeas corpus during and after the Civil War; Theodore Roosevelt, who suspended it in two provinces in the Philippines during a 1905 rebellion there; and Franklin Delano Roosevelt, who suspended it in Hawaii after the Japanese attack on Pearl Harbor.<\/p>\n\n\n\n The Supreme Court and several federal judges have recently ruled that anyone detained in the U.S. \u2014 including migrants \u2014 has the right to appear before a judge and present their defense. <\/p>\n\n\n\n Trump and Miller have assailed those rulings.<\/p>\n\n\n\n In his remarks on Friday, Miller referred to the jurists responsible as \u201ca handful of Marxist judges\u201d carrying out \u201ca judicial coup.\u201d He warned that the administration\u2019s decision to suspend habeas corpus unilaterally would depend on whether the courts \u201cdo the right thing.\u201d<\/p>\n\n\n\n