To Hell with the Constitution
Stephen Miller’s call to suspend habeas corpus for non-citizens isn’t just provocative, it’s a test of whether constitutional protections apply to all persons or only to those in political favor.
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On the White House driveway, surrounded by reporters, Stephen Miller last week stated that the Trump administration was exploring whether the privilege of the writ of habeas corpus applies to non–U.S. citizens and undocumented immigrants.
“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 at a time of invasion. So I would say that’s an action we’re actively looking at,” said Miller, deputy chief of staff for domestic policy. “A lot of it depends on whether the courts do the right thing or not.”
The White House did not comment or offer clarification on Miller’s remarks. His statement came just days after an NBC interview in which Donald Trump said he didn’t know whether he was obligated to uphold the Constitution or whether undocumented immigrants were entitled to due process under the law.
Since taking office, Immigration and Customs Enforcement (ICE) has been rounding up undocumented immigrants and summarily deporting them without hearings. The State Department has revoked the visas of students engaged in campus protests, citing national security concerns. Border agents have detained visa holders and legal residents at airports and land crossings—often without clear justification.
These actions—many executed under the guise of the Alien Enemies Act of 1798—have run counter to judicial interpretation. Last week, a federal judge struck down the administration’s use of the 18th-century law as unconstitutional. Many other federal judges have blocked or issued temporary injunctions against the administration’s deportation efforts. And the Supreme Court unanimously ruled that the Trump administration must “facilitate” the return of Kilmar Abrego Garcia, an undocumented immigrant with court-protected status who was deported to El Salvador due to an administrative error.
Despite this losing streak, the Trump administration continues to argue that undocumented immigrants and foreigners do not have the same rights as American citizens. I—and many legal experts—disagree with this position. That’s not to say there’s consensus that undocumented immigrants have a right to remain in the U.S.; rather, the argument is that they should be afforded the legal protections guaranteed to all people on American soil.
But for argument’s sake, let’s assume the administration’s position: summarily deporting undocumented immigrants without hearings, eliminating habeas corpus for non-citizens, and denying constitutional protections to non–U.S. citizens on American soil. I’m not saying it’s right. I’m not even saying it’s legal. I’m simply suggesting we evaluate it on its merits. Why not codify the policy into law by passing legislation through Congress or amending the Constitution with the approval of three-quarters of the states?
The answer is simple: putting these policies through the legislative or constitutional amendment process would expose them to scrutiny, force lawmakers to take public positions, and risk political defeat.
Let’s revisit why Miller is focused on habeas corpus.
The only individual right explicitly protected in the original Constitution, prior to the adoption of the Bill of Rights, is the writ of habeas corpus, or protection from unlawful detention. The Founders included it to prevent the government from arresting individuals without cause or hearings, a tactic common in the political purges of European monarchies.
Habeas corpus applies to everyone, not just U.S. citizens. It is reinforced by the Fourth Amendment, which protects against unreasonable searches and seizures; the Fifth Amendment, which guarantees due process; and the Fourteenth Amendment, which prohibits the government from depriving any person of life, liberty, or property without due process of law.
Crucially, all three amendments refer to “persons,” not “citizens.” The Supreme Court has consistently held that “persons” includes anyone on U.S. soil, regardless of immigration status.
Yet the Trump administration is openly defying these constitutional protections in its effort to expedite the deportation of undocumented immigrants, foreign students, and individuals residing in the country on temporary work visas.
» READ: Intimidation Nation for more insights on the Trump administration’s immigration and deportation practices
According to government estimates, roughly 11 million non-citizens are living illegally in the United States. This number excludes tourists with overstayed visas and foreign workers on tenuous temporary permits. The administration maintains that this population represents an invasion that threatens national security, displaces American workers, lowers quality of life, and undermines domestic tranquility (i.e., increases crime) and cultural norms—an argument advanced most aggressively by Miller, despite ongoing legal challenges and constitutional precedent.
Miller argues that the government can suspend habeas corpus during wartime. He cites President Abraham Lincoln’s actions during the Civil War, when suspected Confederate sympathizers were detained without hearings or trials. He fails to mention that Lincoln’s wartime policies were later struck down by the courts and repudiated by political leaders across the spectrum.
President Franklin D. Roosevelt invoked the Alien Enemies Act after the outbreak of World War II and effectively suspended habeas corpus for hundreds of thousands of Japanese Americans—many of them U.S. citizens. They were detained in internment camps under the pretense of national security. That policy, too, was later condemned by the courts and by history.
Autocratic governments don’t rule by edict alone. They adopt the veneer of democratic processes and the rule of law. They seek justification—and insulation—by appearing to operate within institutional norms. Miller argues that the courts are at war with the executive branch, trying to constrain the president’s authority. That is, in fact, their role: checks and balances.
Back to the question of codification: if legislation would compel the courts to comply with Trump’s policies, why not pass it? Besides exposing their policies to public scrutiny, the process takes time. Since 1789, more than 11,000 constitutional amendments have been proposed; only 27 have passed. While the process can move quickly—the 26th Amendment, which lowered the voting age to 18, passed in just three months—others take decades. The 27th Amendment, which restricts congressional pay increases, took 203 years to ratify.
All presidents engage in legal maneuvering, interpretation, and executive action to advance their agendas without going through Congress. President Barack Obama, with Supreme Court backing, invoked the Commerce Clause to require individuals to obtain health insurance under the Affordable Care Act. President Joe Biden reinterpreted multiple statutes to justify student loan forgiveness, though courts rejected his initial attempts. The Trump administration is not unique in attempting to stretch or bypass legal norms.
Miller contends that the president has the authority under existing statutes and traditions to carry out his immigration and deportation policies. Relying on outdated legal precedents to legitimize modern policies that likely exceed their intended scope is a stretch. But the law could be made far clearer through legislation that affirms the administration’s narrative and establishes a new legal doctrine.
That won’t happen. As historian and journalist Anne Applebaum notes, autocrats seek rule by law, where the law is an instrument of power, rather than rule of law, where legal standards apply equally to all. In Miller’s view, the law becomes a tool of control, defined not by precedent or principle, but by the will of those in office.