Stephen Miller Wants to Suspend Habeas Corpus. Here’s Why That Should Terrify You

CHAPTER I: THE CAGE DOOR SLAMS QUIETLY

Let’s start with a phrase that doesn’t appear in the Constitution: “Just trust us.”

On May 9, 2025, Stephen Miller—a man who’s spent the better part of a decade fantasizing about autocracy with a thesaurus—stood outside the White House and said the words no American should ever ignore: the Trump administration is “actively looking at” suspending habeas corpus. Why? Because, Miller says, undocumented immigration constitutes an “invasion.”

Now let’s pause here. Let’s slow this down. Let’s give the words the weight they deserve, because it doesn’t get more American than habeas corpus. And it doesn’t get more dangerous than a government eager to throw it in the shredder under the excuse of “emergency.”

“Habeas corpus”—Latin for “you shall have the body”—is the legal bedrock of civilization. It’s the right to challenge your detention in court. It’s the thing standing between liberty and a secret prison. It’s the difference between rule of law and the rule of power. You don’t need a law degree to get it—if the state locks you up, you get to ask: “Why?”

Miller wants to take that away. Not from everyone, not all at once. Just from “them.” From the people labeled “invaders.” Because when you can convince enough Americans that “they” aren’t really “us,” it gets a lot easier to burn the rulebook without anyone noticing the smell.

This isn't new for Miller. He’s tried “migrant caravans.” He’s tried “shithole countries.” Now it’s “invasion.” And once again, he’s reaching for the same match: emergency powers.

But the Constitution isn’t a choose-your-own-adventure novel. Article I, Section 9 says it plainly: “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.”

Even then—and here’s the part Miller wants you to forget—that power belongs to Congress, not the president. Not Trump. Not Miller. Not the senior staffer with a God complex and a wireless mic.

So what is this really?

It’s not immigration policy.

It’s not public safety.

It’s the oldest trick in the authoritarian playbook: call your opponents enemies, call your critics traitors, call your detainees “invaders,” and suddenly due process becomes optional.

CHAPTER II: WHAT THEY DON’T TEACH IN LAW SCHOOL (IF YOU LEARNED LAW FROM YOUTUBE)

You want to understand how this happens? How the world’s oldest democracy finds itself with one foot over the threshold of authoritarianism? You don’t start with the tanks. You start with the vocabulary.

Stephen Miller called it an “invasion.”

Not a surge. Not a crisis. Not even the well-worn “flood” or “wave.” He called it an invasion—intentionally. Because “invasion” is a magic word in the American legal spellbook. Say it enough times, and suddenly, constitutional protections start vanishing like socks in a dryer.

But here’s the truth, and I want you to hear it loud enough to echo down Constitution Avenue: immigration is not an invasion. It is not a military assault. It is not an armed conflict. It is not columns of tanks rolling into Texas. It is not wartime, and it is not rebellion. It is desperate people trying to survive. It is asylum-seekers, laborers, children.

And the Constitution is crystal clear. Only in times of rebellion or invasion can habeas corpus be suspended. And even then, the power belongs to Congress, not the president—not even if he’s wearing a red tie and calling it a national emergency from a golf course in Bedminster.

Let’s go to school for a second.

The Suspension Clause—Article I, Section 9—wasn’t an afterthought. The Founders were terrified of unchecked executive power. These were men who had lived through monarchy, whose entire philosophy of government was built around the idea that no one person gets to be judge, jury, and jailer. That’s why it’s in Article I—Congress’s article—not Article II.

And it’s why the history of suspending habeas corpus is such a short, harrowing list. Lincoln did it during the Civil War, to stop Confederate sympathizers from sabotaging the Union. He faced immediate constitutional pushback from Chief Justice Roger Taney, who ruled in Ex parte Merryman (1861) that Lincoln had exceeded his authority. Lincoln eventually sought congressional approval.

Ulysses S. Grant suspended it during Reconstruction, when Southern militias were lynching Black Americans and undermining the fragile new republic. President McKinley did it during the Philippine-American War, when U.S. forces were fighting an armed insurgency. FDR did it in World War II—and the shame of that moment lives on in the internment of Japanese Americans, one of the lowest points in our national conscience.

That’s the list.

No suspension after 9/11. No suspension during the January 6 insurrection. No suspension when Timothy McVeigh blew up the Murrah Building. No suspension during the crack epidemic, the border crossings of 2014, the refugee waves of Syria, or the COVID-19 pandemic. Because we don’t do that here.

And yet—here we are. In 2025. A man in the West Wing openly wondering aloud whether they can turn the key and lock the jail cell without bothering with a trial. Not because of war. Not because of rebellion. But because of immigration. Because of asylum claims. Because of border crossings. Because of people.

You may not like immigration policy. You may think the system is broken. But broken is not the same as war. And fixing a system never starts by smashing the Constitution into pieces.

CHAPTER III: A TALE OF TWO BRANCHES

The Constitution is not a suggestion. It’s not a mood board. It’s not a set of helpful guidelines you can toss out when they become politically inconvenient.

And yet, in today’s America, the executive branch seems to be treating it like a Groupon—something you use when it’s useful, ignore when it’s not, and rewrite on the fly if you think nobody’s watching.

Let’s go back to Lincoln, because Stephen Miller keeps invoking him as precedent, like reciting Gettysburg absolves you of handcuffing due process. Lincoln suspended habeas corpus in April 1861, in the early days of the Civil War, after Confederate sympathizers attacked Union soldiers and destroyed infrastructure. And yes, he acted unilaterally—but here’s what they never tell you on cable news: Lincoln was sued.

Chief Justice Roger Taney, in Ex parte Merryman, ruled that Lincoln’s suspension of habeas corpus was unconstitutional because only Congress has that power. Taney—no progressive hero, mind you; this is the same guy who authored Dred Scott—called it an illegal expansion of executive authority. Lincoln responded by asking Congress to ratify his actions. And Congress did.

It wasn’t pretty. It wasn’t clean. But it followed the rules. Because Lincoln—though desperate, though embattled, though presiding over literal national collapse—respected the framework.

Stephen Miller, on the other hand, wants to skip the framework entirely.

He wants to go full Andrew Jackson—“The Court has made its decision; now let it enforce it.” He’s betting that if they move fast enough, loud enough, and with enough bluster, the courts will blink. Or Congress will freeze. Or the media will get distracted by a Kardashian.

But we’re not a monarchy. We’re a constitutional republic. We separate powers for a reason. And here’s how the Suspension Clause keeps that balance: Congress makes the call. Not the president.

Why?

Because Congress is the most representative branch of government. It’s big, it’s messy, it’s slow, and it’s filled with more backroom deals than a Vegas poker table—but it’s still where we the people live. If habeas corpus is to be suspended, it must be done by the people’s representatives, not the whims of a man whispering in the president’s ear about “emergency powers” while sketching dystopian policy with a Sharpie.

There are legal scholars—serious ones—across the ideological spectrum who’ve weighed in over the years. They’ve debated drone strikes and war powers and NSA surveillance. And still, on this point, there’s near-universal agreement:

A unilateral suspension of habeas corpus by the President of the United States would be unconstitutional.

That’s not just Steve Vladeck saying it. That’s not just Harvard or Yale. That’s not just MSNBC legal analysts and armchair Twitter lawyers. That’s conservative scholars, libertarians, originalists, textualists. Because this isn’t about left or right. It’s about law or lawlessness.

It’s about whether we still believe the president has a boss. And that boss is the Constitution.

CHAPTER IV: THE AUTHORITARIAN TEST BALLOON

This is how it starts.

Not with tanks in the streets. Not with martial law. Not with a red, white, and blue version of the Reichstag Fire. No, it starts with something far more mundane. Something that sounds like just another Sunday morning headline. A statement. A press conference. A policy trial balloon that floats, waits, and watches.

Stephen Miller’s May 9 press conference wasn’t about immediate action—it was about testing the waters. Because before you suspend habeas corpus, you suspend resistance. You soften the ground. You see if the media shrugs. You see if the public forgets. You see if the courts stay silent. And if the pushback is light enough, you push harder the next time.

They call it “normalization.” I call it the slow, deliberate strangulation of the republic.

Let’s not be naive. This didn’t come from nowhere. It’s not Miller freelancing. This is deliberate authoritarian choreography, and it follows a pattern we’ve seen from this administration again and again:

1. Use fear to expand power. Start with a real problem, inflate it into an existential crisis, and then claim emergency authority to fix it. Immigrants become invaders. Cities become war zones. Journalists become enemies of the people.

2. Redefine the legal terms. Take words with specific legal meanings—“invasion,” “treason,” “terrorist,” “classified”—and bend them until they break. Suddenly, seeking asylum becomes criminal. Protesting becomes sedition. Leaking becomes espionage.

3. Dismantle the watchdogs. Undermine the courts. Politicize the DOJ. Gut the inspector generals. Fire the U.S. attorneys. Stack the judiciary with loyalists. Turn the machinery of law into a Rube Goldberg device that always rolls downhill, landing on the powerless.

4. Play the press. Leak outrageous ideas—like suspending habeas corpus—not to implement them immediately, but to make the next outrageous thing feel a little more acceptable. It’s Overton window manipulation, and it works because attention spans are short, and outrage fatigue is real.

5. Then do it anyway. Ignore the legal consensus. Bet that Congress won’t act. Bet that the courts will delay. Bet that the opposition party is too fragmented, too polite, or too distracted to stop you.

This chapter in the Trump administration’s second term is not an isolated moment—it’s a test. A legal stress test. A constitutional “what if.” And if it goes unchallenged, it becomes precedent. And if it becomes precedent, it becomes power. And if it becomes power, it becomes policy.

Let me say it again, in a tone even Stephen Miller can understand:

Habeas corpus is not optional.

It is not discretionary.

It is not a talking point.

It is a line.

And if we let this administration cross it—if we let them redefine "invasion" to mean “people we don’t like,” if we let them repurpose national security to mean “political convenience,” if we let them suspend the most ancient right in the English-speaking legal tradition because it polls well in Iowa—we will not get that line back.

CHAPTER V: THE SLIPPERY SLOPE IS REAL, AND WE’RE ON IT

You’ve heard the metaphor before. The slippery slope. It gets rolled out so often in politics, it’s lost its edge—reduced to the rhetorical equivalent of shouting “fire” in a crowded debate. But this one isn’t theoretical. It’s not hypothetical. It’s not a dystopian novella written to scare poli-sci majors.

This one is real. It’s steep. And we’re already halfway down it.

Because once you suspend habeas corpus for them—whoever ‘they’ are—you’ve crossed a line that doesn’t retreat.

If the President of the United States can detain immigrants without the right to challenge that detention in court, what stops him from doing it to journalists? To protesters? To political opponents? What stops a future administration—any administration—from citing Miller’s “invasion” theory to justify rounding up dissidents during a climate march? A teachers’ strike? A sit-in?

And don’t think for a second that courts will always stop them.

Because the courts are not immune to fear. Not immune to pressure. Not immune to the same normalization that creeps through the public square like fog through a battlefield. We’ve already seen the slow erosion of judicial oversight during this administration. Judges intimidated. Rulings ignored. Legal norms bent and reshaped like tinfoil hats.

The past suspensions of habeas corpus weren’t just rare—they were massive national crises. Civil war. Armed rebellion. Occupation. Not crowd control. Not Fox News headlines. Not immigration waves.

Lincoln faced the literal disintegration of the Union. Grant was fighting paramilitary groups during Reconstruction. FDR had Japanese warplanes bomb Pearl Harbor and Axis powers declaring war. McKinley was dealing with armed resistance in the Philippines.

And even then—even then—we look back with regret. Even then, we see the consequences: the internment camps. The indefinite detentions. The lives destroyed under the guise of safety.

Now imagine how history will judge us if we don’t have a war. If we don’t have a rebellion. If the threat is not tanks or militias or sabotage—but fear. Manufactured fear. Weaponized rhetoric. “Invasion” as a marketing pitch for authoritarianism.

Because here's the thing the Stephen Millers of the world won’t admit: this isn’t about safety.

It’s about power.

Suspending habeas corpus is the nuclear option of civil liberties. It's not a tool you use when your immigration system needs reform. It’s what you reach for when you've stopped caring about the system entirely—when you’ve decided the rules, the courts, the Constitution itself are speed bumps on the road to total control.

And if we let this happen—even once—we teach the next president, and the one after that, and the one after that, that there are no rules. Only moods. Only moments. Only windows of silence wide enough for power to slip through unnoticed.

We can’t afford fatigue—not now, not on this

CHAPTER VI: THE CHECKS, THE BALANCES, AND THE FINAL BELL

We are not helpless.

That may be the most radical sentence in American politics right now. But it’s true. It’s always been true. The Constitution may be battered, bruised, and misquoted by people who treat it like a prop on a soundstage—but it’s still there. It still breathes. And it still belongs to us.

Because for every Stephen Miller, there is a federal judge. For every unlawful power grab, there is a lawsuit with teeth. For every constitutional violation floated as a press stunt, there are citizens with memory, conscience, and Wi-Fi.

The system hasn’t failed. We’ve just stopped pulling the fire alarm.

Congress has the authority to check the president. That’s not a slogan—it’s a constitutional fact. Article I doesn’t sit beneath Article II. It sits before it. And if Congress won’t act—if it continues to treat oversight like it’s a partisan activity or a career risk—then the voters need to replace the actors with people who remember the script.

And the courts?

The courts need to stop waiting for a body count to intervene. They need to rule quickly. They need to rule clearly. They need to stop being referees with whistles and start being guardians with gavels. The Constitution is not a choose-your-own-adventure novel. It’s not up for reinterpretation every time a White House adviser decides they don’t like immigrants.

We’ve already seen what happens when we allow the erosion of rights to go unanswered. Guantánamo. Korematsu. The Patriot Act. Executive Orders scrawled in the margins of tragedy. America’s history is filled with moments where fear drowned principle—and every time, we’ve paid in shame, in reparations, in apologies written too late to save the people they hurt.

So this time?

Let’s not wait for the apology tour.

Let’s not wake up five years from now debating whether indefinite detention “went too far.” Let’s not argue over how to explain to our kids why America no longer honors the writ of habeas corpus—the same writ that the barons of Runnymede demanded from King John in 1215, that Churchill held firm during the Blitz, that our soldiers carried in their minds as they liberated Europe from men who ruled without law.

This isn’t abstract. This is immediate.

Stephen Miller has floated the suspension of one of the most fundamental rights in a free society. He’s called it a legal option. He’s called immigration an invasion. He’s laid the groundwork for a constitutional crisis disguised as law and order.

And it’s on us to stop him.

Not with tweets. Not with hashtags. Not with think pieces or resigned cynicism.

But with every lever of democracy we still possess. With subpoenas. With lawsuits. With protest. With vote. With voice. With the full-throated, unapologetic, flag-wrapped declaration that this—this thing we built, flawed and fragile and beautiful—is worth defending.

Because once the jail door slams shut without a trial, without a hearing, without a charge... it never opens the same way again.

The Constitution is not a relic.

It is not an antique.

It is not breakable glass to be stored away when the politics get messy.

It is a promise. And that promise has lasted 236 years because someone, in every generation, stood up and said: “Not on my watch.”

Time to stand up.

Because if we wait for the cell door to close, the echo might be the last freedom we hear.