Friday Night Reads: Disappearing Democracy

“Blockbuster Trade Announcement.” John Buss @repeat 1968

Good Evening, Sky Dancers!

I was late getting this post started today. I’ve had two doctor’s appointments the last two days, and I’m just exhausted.  I guess I have one more test to go next week, and they’re leaving me alone until September. The good news is that I finally got to pick up my new glasses, so I can see clearly now! There is so much news today surrounding habeas corpus and free speech that I can’t believe what I’m seeing live on TV.  I’m going to start with this headline from PBS. “WATCH: Stephen Miller says Trump administration is ‘actively looking at’ suspending habeas corpus.”

Stephen Miller, a top White House adviser, said the administration is looking for ways to expand its legal power to deport migrants who are in the country illegally.

Watch Miller’s remarks in the video player above.

“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,” he told reporters. “So it’s an option that we’re actively looking at.”

Miller added that “a lot of it depends on whether the courts do the right thing or not.”

Habeas corpus refers to people’s right to challenge their detention in court.

This, of course, is completely false, but that never matters to any of the Psychopaths surrounding #FARTUS. Steve Vladeck, a professor of law at Georgetown University, writes this at his Substack One First. “148. Suspending Habeas Corpus. In response to adverse rulings in numerous immigration cases, Stephen Miller is raising the specter of suspending habeas. His argument is factually and legally nuts, but it’s worth explaining *why.*”

“I was going to wait until Monday’s regular issue to note the sad news out of the Supreme Court on Friday (that retired Justice David Souter passed away Thursday at the age of 85). But then Stephen Miller went on television Friday afternoon and made some of the most remarkable (and remarkably scary) comments about federal courts that I think we’ve ever heard from a senior White House official. Reacting to a series of high-profile losses in immigration cases this week, Miller raised the specter of President Trump suspending habeas corpus:

Well, 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. At the end of the day, Congress passed a body of law known as the Immigration Nationality Act which stripped Article III courts, that’s the judicial branch, of jurisdiction over immigration cases. So Congress actually passed what’s called jurisdiction stripping legislation. It passed a number of laws that say that the Article III courts aren’t even allowed to be involved in immigration cases.

I know there’s a lot going on, and that Miller says lots of incendiary (and blatantly false) stuff. But this strikes me as raising the temperature to a whole new level—and thus meriting a brief explanation of all of the ways in which this statement is both (1) wrong; and (2) profoundly dangerous. Specifically, it seems worth making five basic points:

First, the Suspension Clause of the Constitution, which is in Article I, Section 9, Clause 2 is meant to limit the circumstances in which habeas can be foreclosed (Article I, Section 9 includes limits on Congress’s powers)—thereby ensuring that judicial review of detentions are otherwise available. (Note that it’s in the original Constitution—adopted before even the Bill of Rights.) I spent a good chunk of the first half of my career writing about habeas and its history, but the short version is that the Founders were hell-bent on limiting, to the most egregious emergencies, the circumstances in which courts could be cut out of the loop. To casually suggest that habeas might be suspended because courts have ruled against the executive branch in a handful of immigration cases is to turn the Suspension Clause entirely on its head.

Second, Miller is being slippery about the actual text of the Constitution (notwithstanding his claim that it is “clear”). The Suspension Clause does not say habeas can be suspended during any invasion; it says “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.” This last part, with my emphasis, is not just window-dressing; again, the whole point is that the default is for judicial review except when there is a specific national security emergency in which judicial review could itself exacerbate the emergency. The emergency itself isn’t enough. Releasing someone like Rümeysa Öztürk from immigration detention poses no threat to public safety—all the more so when the release is predicated on a judicial determination that Ozturk … poses no threat to public safety.

Third, even if the textual triggers for suspending habeas corpus were satisfied, Miller also doesn’t deign to mention that the near-universal consensus is that only Congress can suspend habeas corpus—and that unilateral suspensions by the President are per se unconstitutional. I’ve written before about the Merryman case at the outset of the Civil War, which provides perhaps the strongest possible counterexample: that the President might be able to claim a unilateral suspension power if Congress is out of session (as it was from the outset of the Civil War in 1861 until July 4). Whatever the merits of that argument, it clearly has no applicability at this moment.

Fourth, Miller is wrong, as a matter of fact,about the relationship between Article III courts (our usual federal courts) and immigration cases. It’s true that the Immigration and Nationality Act (especially as amended in 1996 and 2005) includes a series of “jurisdiction-stripping” provisions. But most of those provisions simply channel judicial review in immigration cases into immigration courts (which are part of the executive branch) in the first instance, with appeals to Article III courts. And as the district courts (and Second Circuit) have explained in cases like Khalil and Öztürk, even those provisions don’t categorically preclude any review by Article III courts prior to those appeals.

There’s more at the link. Here’s the bottom line from NBC News and Dan Mangam. “Top White House adviser Stephen Miller says ‘we’re actively looking at’ suspending due process for migrants. 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,” Miller told reporters outside the White House.”  How on earth they keep insisting that immigration is an invasion is beyond me.

Top Trump adviser Stephen Miller told reporters Friday that the administration is “looking at” ways to end due process protections for unauthorized immigrants who are in the country.

“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,” Miller said in the White House driveway.

“A lot of it depends on whether the courts do the right thing or not,” Miller said.

The White House did not immediately respond to a request for clarification on whether he was referring to a specific group of people who’ve entered the country illegally, or all the people who have. It also did not comment on what he meant by the courts doing “the right thing.”

In his remarks, Miller maintained that the courts don’t have jurisdiction in immigration cases. “The courts aren’t just at war with the executive branch; the courts are at war, these radical rogue judges, with the legislative branch as well too. So all of that will inform the choices the president ultimately makes,” he said.

President Donald Trump has repeatedly voiced frustration about constitutional due process protections slowing down his efforts at mass deportations.

“I was elected to get them the hell out of here, and the courts are holding me from doing it,” he said in an interview with Kristen Welker that aired Sunday on NBC News’ “Meet the Press.”

Welker pointed out the Fifth Amendment of the U.S. Constitution says “no person” shall be “deprived of life, liberty, or property, without due process of law” and that the Supreme Court has long recognized that noncitizens have certain basic rights, but Trump complained that those protections take too much time.

“I don’t know. It seems — it might say that, but if you’re talking about that, then we’d have to have a million or 2 million or 3 million trials,” he said, adding that some of the people the administration wants to deport are “murderers” and “drug dealers.”

Welker then asked if he needs to uphold the Constitution.

“I don’t know,” Trump replied. “I have to respond by saying, again, I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said.”

A clause in the Constitution says due process protections can be suspended during an invasion: “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.”

Trump claimed the U.S. was being invaded back in March, when he invoked the rarely used Alien Enemies Act to send alleged members of the Venezuelan gang Tren de Aragua to a prison in El Salvador.

What really held me up in writing this by the time I got home was watching ICE thugs rough up an 80-year-old congresswoman and arrest the Mayor of Newark.  This is from the AP, which is the news organization that refuses to go along with renaming the Gulf of Mexico, which was named 500 years ago. #FARTUS reminds me of some prehuman creature picked up by explorers in some version of the Land Time Forgot.  Kristen Noem is the enforcer in just about any movie about a fascist dystopian you’ve ever seen.  It’s ICE ICE BABY.  “New Jersey mayor arrested at ICE detention center where he was protesting, prosecutor says.”  Which century and country do we live in these days?

Newark Mayor Ras Baraka was arrested Friday at a federal immigration detention center where he has been protesting its opening this week, a federal prosecutor said.

Alina Habba, interim U.S. attorney for New Jersey, said on the social platform X that Baraka committed trespass and ignored warnings from Homeland Security personnel to leave Delaney Hall, a detention facility run by private prison operator GEO Group.

Habba said Baraka had “chosen to disregard the law” and added that he was taken into custody.

Baraka, a Democrat who is running to succeed term-limited Gov. Phil Murphy, has embraced the fight with the Trump administration over illegal immigration.

He has aggressively pushed back against the construction and opening of the 1,000-bed detention center, arguing that it should not be allowed to open because of building permit issues.

Linda Baraka, the mayor’s wife, accused the federal government of targeting her husband.

“They didn’t arrest anyone else. They didn’t ask anyone else to leave. They wanted to make an example out of the mayor,” she said, adding that she had not been allowed to see him.

A crowd gathered to protest outside the building where Baraka was being held, with many chanting, “Let the mayor go!”

Witnesses said the arrest came after Baraka attempted to join three members of New Jersey’s congressional delegation, Reps. Robert Menendez, LaMonica McIver, and Bonnie Watson Coleman, in attempting to enter the facility.

So if you want the laughable and extremely sad headline today from our GOOBERment, here it is from Homeland Security. “Members of Congress Break into Delaney Hall Detention Center, Delaney Hall Currently Holds Murderers, Rapists, Suspected Terrorists, and Gang Members. “  How exactly do we know all that if none of them have been before a court yet?  I’m not going to excerpt that, but do recommend you read this and realize it’s from OUR government.

Here’s Insider NJ with a more truthful angle. “Reps. Watson Coleman, McIver, Menendez, Exercise Oversight Authority in Visit to ICE Detention Facility.”  I watched the entire event live on MSNBC today. Again, it’s why I was even later than I originally had planned to be today.  I was watching and listening to the representatives demand that the masked ICE thugs take their hands off them.

Today, following an inspection of the Delaney Hall ICE facility in Newark, New Jersey with Reps. LaMonica McIver and Robert Menendez, Jr., Congresswoman Bonnie Watson Coleman released the following statement: 

“At around 1pm today, my colleagues Rep. Lamonica McIver and Rep. Rob Menendez, Jr. and I arrived at the Delaney Hall ICE detention facility in Newark to exercise our oversight authority as Members of Congress.

“Contrary to a press statement put out by DHS we did not “storm” the detention center. The author of that press release was so unfamiliar with the facts on the ground that they didn’t even correctly count the number of Representatives present. We were exercising our legal oversight function as we have done at the Elizabeth Detention Center without incident.

“Reopening Delaney Hall won’t make us safer and it won’t create an immigration system that is fair and secure for all families.

“Private Prison companies like GEO Group create a perverse incentive to increase incarceration to increase corporate profits. It’s no accident that GEO Group was the first corporation to max out donations to Trump’s Super PAC, to the tune of $500,000 dollars. And they’re being rewarded with huge contracts to imprison immigrants like we’re seeing here at Delaney.

“New Jerseyans don’t want more private prisons just to increase shareholder income at the expense of taxpayers. They want a fair and secure immigration system that reflects our values and respects our Constitution.”

Meanwhile, judges continue to free students arrested by ICE under the weird ass interpretations of Habeas Corpus put forth by Miller. “She was arrested for an op-ed. Now a judge has ordered her freed. Her detention “chills the speech of the millions and millions of people who are not citizens,” a federal judge said.”  This is from VOX’s Andrew Prokop.

A Trump administration spokesperson anonymously claimed in March that “DHS and ICE investigations found Öztürk engaged in activities in support of Hamas.” But to this day they have conspicuously failed to produce any evidence of that — including, when Öztürk filed suit, before a judge.

What did the judge say? Judge William Sessions III ordered Öztürk released “immediately.” Ruling from the bench, he sounded appalled by the Trump administration’s conduct, which he said “chills the speech of the millions and millions of people who are not citizens.”

He said Öztürk had made “very substantial claims of First Amendment and due process violations,” and that, furthermore, the government had offered “no evidence” about their motivation for detaining her other than the op-ed

Is this case over, then? No. Öztürk was ordered released from detention. But the question of whether the US government can legally revoke her visa remains unresolved. While Sessions sounds very likely to rule in her favor, it’s unclear if conservatives on the Supreme Court will do the same, should the case reach them. Still, this case has been an embarrassment to the Trump administration, and perhaps there’s a faint glimmer of hope they’ll decide to just drop it. Too optimistic? Probably.

Films of her release from the Louisiana ICE Detention Center have been shown on all the news stations today. Meanwhile, WAPO reports that “ICE moves detainees to Texas facility where judge declined to halt deportations. One Philadelphia man was transferred to Texas in apparent violation of a court order requiring that he be kept in Pennsylvania as his case played out there.”  

As the Trump administration battles to use awartime law to speed deportationsof alleged gang members, it has moved dozens of detained Venezuelans to the one court district in the nation where a federal judge for now has declined to stand in its way.

U.S. District Judge Wesley Hendrix, a Trump appointee sitting in the Northern District of Texas, refusedlast month to pause removals under the Alien Enemies Act of detainees who the government says are affiliated with the Tren de Aragua gang — even as judges in Colorado, Pennsylvania, New York and other parts of Texas have done so.

The administration views Hendrix’s district as a “favorable venue,” American Civil Liberties Union attorney Tim Macdonald alleged at a recent court hearing in Denver. He and other immigrant advocates say the rush of relocations to the Bluebonnet Detention Facility in Anson, Texas, has forced targeted Venezuelans to contest their removals in a court they see as ideologically aligned with the president.

“What the government was doing,” Macdonald said in the hearing, “was finding Venezuelan men, rounding them up and shipping them to the Northern District of Texas.”

The Department of Homeland Security declined to answer questions about how many Venezuelan migrants are housed at Bluebonnet. It also would not say how many had been moved there from other facilities in recent weeks or why those transfers were made.

For now, the Supreme Court has indefinitely paused all Alien Enemies Act deportations in Hendrix’s district as it weighs whether migrants there are being given adequate opportunity to challenge their designations as “alien enemies.” The administration does not appear to have deported any migrants under the law from anywhere in the country since it first sent more than 130 Venezuelans to a notorious prison in El Salvador in March.

I want to end with Senator Murphy reading the riot act to Cos-Playing Homeland Security Secretary Kristi Noem.  It’s really worth watching.

ABC News also had this write-up on the Senate Committee’s visit with her. “Democrats slam DHS secretary as Noem says Abrego Garcia ‘not coming back’ to US. Noem was in front of the Senate testifying on the 2026 DHS budget.”

“Senate Democrats sparred with Homeland Security Secretary Kristi Noem on Wednesday over whether Kilmar Abrego Garcia will be returned to the United States, as well as the Department of Homeland Security’s spending.

During a Senate Appropriations Committee hearing, Sen. Chris Van Hollen, D-Md., who traveled to El Salvador to meet with Abrego Garcia, asked if the Trump administration would comply with the Supreme Court’s decision that the U.S. government must facilitate Abrego Garcia’s return, Noem replied that the government is following the law but didn’t say yes or no.

“What I would tell you is that we are following court order,” Noem shot back. “Your advocacy for a known terrorist is alarming.”

Van Hollen said he isn’t “vouching for the man” but rather due process.

“I suggest that rather than make these statements here, that you and the Trump administration make them in court under oath,” he added.

Van Hollen then accused Noem of a political speech, and Noem said she would suggest Van Hollen is an “advocate” for victims of illegal crime.

Last month, after Abrego Garcia’s family filed a lawsuit, U.S. District Judge Paula Xinis ordered the Trump administration to facilitate his return to the U.S. The Supreme Court affirmed that ruling on April 10.

No one in this administration appears to be ready to comply with court orders to return Albrego Garcia.  I wonder if Chief Justice Roberts has already offered up his balls to #FARTUS.  We haven’t heard a peep from him since the court sent out the ultimatum to return Garcia.

So, there is so much here to cover that I’m hoping BB can pick up where I leave off.  All of this is illegal, unconstitutional, and un-American.  It’s about time someone defangs them all.

What’s on your reading and writing list?