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🌊 Habeas Corpus in Limbo?
Momentum is building to suspend the fundamental Constitutional right
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By Max Frost
On April 28, Rogan O’Handley – better known by his social media handle DC_Draino – delivered the first question at the White House press conference.
"In Trump's first 99 days, we've seen a coordinated assault on the rule of law by radical judges, thwarting his agenda with an unprecedented level of national injunctions. These judges are providing more due process to violent MS-13 and Tren de Aragua illegal aliens than they did for American citizens who peacefully protested on January 6th."
He continued: “It would be utterly ridiculous for full trials and appeals for the more than 15 million illegal aliens that came across our border under Joe Biden…Many are now calling for Trump to circumvent these radical judges and consider suspending the writ of habeas corpus solely for these illegal aliens in accordance with the terms of Article 1, Section 9 of the United States Constitution, which explicitly allows for such a measure when there is a rebellion or invasion."
At the time, many were not calling for a suspension of habeas corpus. That question went viral, though, and kicked off a national conversation among Republicans. And now, many are.
O’Handley continued: “Historic assaults on our republic require reciprocal action from our government. Can you please let us know if and when the Trump administration is planning to suspend the writ of habeas corpus to circumvent these radical judges…and to start shipping out illegals en masse?"
White House Press Secretary Karoline Leavitt replied, "I have not heard such discussions take place, but I can assure you [the president is] open to all legal and constitutional remedies.”
Habeas corpus – literally “you should have the body” in Latin – is a Constitutional right that requires the government to provide a public reason for detaining someone. It allows individuals, including non-citizens, to petition courts to review whether their detention by immigration authorities is lawful.
The Constitution 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.” Alexander Hamilton once wrote that the “establishment of the writ of habeas corpus” is a “greater security to liberty and republicanism” than nearly any other part of the Constitution. The Supreme Court later called it “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”
Only three presidents have suspended it: President Abraham Lincoln during the Civil War; President Ulysses S. Grant during Reconstruction; and President Franklin D. Roosevelt during World War II. In a 2008 Supreme Court case, Boumediene v. Bush, the Supreme Court ruled 5-4 that even Guantanamo Bay detainees were entitled to the right.
As the conservative Justice Anthony Kennedy wrote for the majority at that time, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
O’Handley – who commands a 7M+ social following – and other influential conservatives want to toss this right out for one specific reason. As he laid out on Steve Bannon’s podcast earlier this month, “A lot of this has to do with the 2030 census.”
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Editor’s Note
This was part two of our two-part series on immigration. Yesterday we analyzed why it’s impossible for Trump to conduct mass deportations as he promised, which explains the push to suspend habeas corpus. We received a lot of responses to that email, some of which are featured below. We want your thoughts on this one, too. Send them here.
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And now, those replies.
Gianni wrote:
As a longtime conservative, I am appalled at what the Trump administration is doing. There is a time and a place for a real conversation about our broken immigration system. There is a time in a place for a conversation about how to rectify that. But every conversation needs to be had within the confines of the court rooms. With a republican controlled Supreme Court, the Republican Party is still getting stopped every time they try things right now because they are doing extremely illegal things. This would be like trying to win a NASCAR race without going on the actual track. Or trying to win a basketball game by taking the hoop off the other side of the court.
The law, and the courts, are the battleground for decision-making. If Trump can’t win in the battleground where there’s already a conservative leaning, it is a clear message to me that he is pushing a criminal agenda.
Anita from Idaho wrote:
“Our freedoms will take us down”
That is a quote from my mother back in the 1960s. I grew up in a Republican household, and every progressive win was met with that statement. At 77 years of age, I believe I am now witnessing her prophecy. I support legal immigration, but it appears that the illegal backlog is making that avenue a near impossibility. I believe that the suspension of habeus corpus is justified in many of today's cases. The illegal surge is making it impossible for those who want to come here legally.
And Lewis from Wilmington wrote:
There’s not even an argument to be made here. The idea of suspending not just a Constitutional right but THE constitutional right in order to enact an otherwise impossible or illegal policy – we have a Constitution for moments like these. And thank you guys yesterday for shedding light on the fact that it’s barely even about immigration to O’Handley and others – it’s about “power, pure and simple.” They want to suspend our rights to enhance their own power, and that is frightening.
That’s all for today. We’ll be back tomorrow with a deep-dive we think you’ll love. See you then!
–Max and Max