Are We Sleepwalking Toward a Constitutional Crisis?

Yahoo

15-05-2025

Last Friday, top White House adviser Stephen Miller suggested that President Donald Trump is actively considering triggering a full-blown constitutional crisis. But you wouldn't know it by listening to some congressional Republicans this week.
'Well, the Constitution is clear,' Miller said, responding to a Gateway Pundit blogger whether the president is considering suspending the writ of habeas corpus to 'take care of the illegal immigration problem.' The Constitution, Miller said, '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.'
The Constitution is indeed clear: It says that the writ of habeas corpus—that is, the right to challenge one's detention in court—shall not be suspended except in 'Cases of Rebellion or Invasion.' Those terms have been universally understood to mean military conflict or war. 'It wouldn't apply to a case of immigration at all. There's zero chance that that would fly in the courts,' John Yoo, a former clerk to Supreme Court justice Clarence Thomas and a Bush Justice Department lawyer, told The Dispatch in an interview.
Yoo, who has an expansive view of the power of the president in times of war, noted that the Constitution is less clear about who has the authority to suspend the writ of habeas corpus. The clause is located in Article I, which covers the powers of Congress, and therefore most legal scholars and the Supreme Court have held that only Congress has limited powers to suspend it. Throughout U.S. history, the writ of habeas corpus has been suspended only four times, and the only time the president unilaterally suspended the writ was in 1861 during the Civil War. (Congress ratified Abraham Lincoln's suspension in 1863.) 'This is nowhere near the time of the Civil War where you had actually, obviously, a civil rebellion,' Yoo said of the present state of the country.
It's entirely possible Miller's comments are simply meant to intimidate and cajole the courts into ruling in favor of the Trump administration's actions on immigration, such as stripping 'Temporary Protected Status' from immigrants. Miller explicitly mentioned cases regarding 'Temporary Protected Status' and said last Friday that those court decisions 'will inform the choices that the president ultimately makes.' But Miller's comments are also an extraordinarily grave threat—striking at a fundamental matter of civil liberty during peacetime—and Trump's willingness to follow through on more extreme ideas has been underestimated before (see January 6, 2021, and his 'Liberation Day' tariffs).
If Trump unilaterally suspended the writ of habeas corpus to address illegal immigration, and the Supreme Court quickly rules against him, what would happen next? Either Trump would comply, or he would defy the court and plunge the country into a constitutional crisis. 'Here you would have plausible grounds for impeachment,' Yoo said. 'You would have a president who arguably arrogated the powers of another branch at a time when the provision doesn't even apply—so much stronger ground for impeachment than Trump's first two rides on that rodeo.'
But congressional Republicans' response to a top White House official toying with a blatantly unconstitutional act has been muted, at best. In the Capitol this week, Kentucky Sen. Rand Paul was the only Republican senator who forcefully spoke out against Miller's comments. 'It's a terrible idea, and anyone discussing suspending habeas corpus is running afoul of history and not really considering that it's the ancient right of habeas corpus. It's been around since Magna Carta or before,' Paul told The Dispatch.
Sen. Chris Coons, a Democrat from Delaware who sits on the Judiciary Committee, said it was essential for more Republicans to speak out. 'My colleagues should all be outraged. This is an exceptional threat to our liberty, unprecedented in modern times,' Coons told The Dispatch. 'Habeas corpus is a foundational basis of our liberty. It goes back to hundreds of years ago when English kings would put in jail their critics and their opponents without charge, without reason and just keep them there. So the framers of our Constitution knew you have to have the right to appear in front of a judge, to say: 'On what basis am I being held? Show the charges, show the evidence, or set me free.''
'Republican senators have to speak up in opposition,' he added. 'That is the only way to slow down some of the more outrageous actions by this president.'
While no one spoke out as forcefully against Miller as Rand Paul, some other GOP senators expressed opposition in a more mild manner.
'Habeas corpus is something I think we fundamentally look to and rely on for due process protections,' Alaska Sen. Lisa Murkowski told The Dispatch. 'We want to make sure we don't jeopardize anything that we would consider to be fundamental. So I'm not quite sure exactly what [Stephen Miller] intended with that. We'd have to find out more.' Asked if the president had the constitutional authority to suspend the writ of habeas corpus over illegal immigration, South Dakota GOP Sen. Mike Rounds said: 'I don't think so. … I think they can look at it, but I think that's about as far as it goes.'
Even some of Trump's staunchest allies stopped short of defending the notion that the president could suspend the writ of habeas corpus over immigration. 'The president can suspend it, right?' Missouri Sen. Josh Hawley said. When The Dispatch noted the provision is limited to cases of invasion or rebellion, Hawley replied: 'I think that this problem would be solved if these judges would actually adjudicate the law and not try to set policy for the nation.' Asked about Miller's comments, Florida GOP Sen. Rick Scott simply said: 'I'm sure they'll follow the law.'
A lack of enthusiastic support from congressional Republicans is, of course, far from the kind of threat that might actually deter Trump from an unprecedented assault on civil liberties. If Trump doesn't fear the courts or Congress, might anything else constrain him? 'It also depends on whether other officers of the government choose to obey the president's order,' Yoo told The Dispatch. 'If you suspend habeas corpus, and you put these aliens … into the hands of the military, does the president really want to raise doubts about the military's willingness to follow the commander in chief? You could see officers refusing to hold people in violation of habeas corpus.'
'I can't think it would come to this,' Yoo said. 'It would really be a mistake to cause those dominos to start falling.'