~~ recommended by emil karpo ~~
The Trump White House seriously studied how to "cancel" habeas corpus, your right to know why the government has arrested you.
Last year, the White House considered a proposal that could’ve enabled the president to arrest anyone, without a stated reason.
A bombshell report from two New York Times journalists reveals that the Trump administration debated suspending what’s called “habeas corpus,” the centuries-old right to force the government to explain, in front of a judge, why it has locked you up. With the president’s encouragement, senior officials in the West Wing studied whether they could switch off one of the oldest guarantees under the law by simply declaring they had the power to arrest people without justification.
While the initial focus was on speeding up mass deportation, such an order would have — in effect — cleared the way for the Trump administration to arrest anyone it wanted and prevent them from challenging their detention. We throw around words like “autocracy” and “fascism,” and at times folks dismiss them as hyperbole, but you cannot read this news without seeing how serious the situation actually is.
For those who might have forgotten, the writ of habeas corpus is what stands between a free person and arbitrary imprisonment. It’s the constitutional requirement that stops a government from being able to make you disappear. In the entire history of the American republic, it’s only been suspended a handful of times amidst war and armed rebellion, including during the Civil War and, most recently, after the attack on Pearl Harbor. Even then, the courts challenged or curtailed aspects of those suspensions as unconstitutional.
Yet according to reports, Stephen Miller and his circle wanted to invoke those historical analogies, though not to repel an invading army. White House aides considered having the president just declare that habeas corpus no longer applied to certain categories of migrants, which would have hypothetically allowed DHS agents to round up anyone they suspected of being in the United States illegally and send them out of the country, without those arrested individuals being allowed to challenge their imprisonment and without a judge having the chance to weigh in.
Apparently, even some officials inside the Trump administration found this alarming, and the proposal was put on hold. But the danger hasn’t passed.
An administration that has considered erasing a foundational constitutional right — by merely declaring it void — has demonstrated quite clearly to the American people that it’s got an appetite for erasing others. Indeed, the New York Times reporting makes clear that the extreme measures didn’t stop at habeas corpus. The same faction inside the White House also pushed to invoke the Insurrection Act to crush anti-Trump protests with federal troops, a possibility I’ve been warning about since I quit the first Trump administration.
All of these “ideas” remain possible actions this White House may take in the years to come. So what on earth could stop them? For now, the answer is provided by the same document that Trump and his aides considered tossing in the trash. The U.S. Constitution itself. The court system — outlined in Article III of the founding document — has shown itself more resilient than expected against Trump’s ongoing crime spree.
America’s judges are the thin and unglamorous barrier between the rest of us and a constitution-wrecking colossus. Just this month, Trump has absorbed one judicial humiliation after another. A federal judge made him scrape his name off the Kennedy Center, ruling that only Congress can name it. Another ordered him to restore the slavery and climate exhibits he’d stripped from our national parks, accusing his administration of trying to rewrite the nation’s history “with a white-out pen.” And any day now the Supreme Court is expected to tell him that he cannot simply cancel another part of the U.S. Constitution, which protects birthright citizenship.
The courts are holding for now. But that’s not the main story.
The story is still that there’s a man in the White House willing to literally cancel parts of the Constitution the moment they inconvenience him. He’s also got a circle around him hunting for the next opening. Against the seriousness of this anti-constitutional threat, judges can only do so much. The rest is on us. And we can only successfully hold the line by naming what they are doing, by refusing to be numbed by it, and by never, for a single day, wavering in our defiance against it.
Stories like this shouldn’t be ignored because they’re scary. They should be shared. They should be a rallying cry. My long-held view is that if you want to stand on the right side of history, you must stand up.
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