A reminder that debating Stephen Miller — who is not a lawyer and is not making legal arguments, he is spouting propaganda — is a win for him.To point out that Stephen Miller is an ignorant Nazi so full of shit his eyes are brown is not to argue with him. Even if it’s stating the obvious, responding to his claims is to point out the Administration is doing all it can to go full Nazi.
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.I start with the Professor Vladeck’s second point because I want to cut to the chase. This passage includes the text of the suspension clause (Art. I, sec. 9, cl. 2), which is clearly relevant here. Because Miller is trying desperately to make an intellectual assault on due process and habeas corpus and the Constitution (by calling out the suspension clause). And when the courts tell him to get stuffed, we all need to cheer rather than wonder if Miller didn’t predict this dystopian turn of events. Remember, Miller is not arguing abstractions in a vacuum. He’s arguing we should declare a state of exception and suspend habeas corpus because a non-citizen legally present in our country…expressed an opinion the Administration doesn’t like. How many constitutional provisions are at play there, especially when the Administration and its minions want to sell the idea that non-citizens aren’t entitled to Constitutional protections?
Are we arguing with Stephen Miller, or are we arguing against these stupid and fascist ideas? Like Trump, Miller may like the attention. But just like Trump, the spotlight is revealing the vermin he really is.
Professor Vladeck has three further points:
A) "that only Congress can suspend habeas corpus"
B) that Congress has stripped Art. III courts of jurisdiction over immigration courts (this is a part of Miller’s argument that hasn’t gotten much attention, but the simple answer is: Miller is not a lawyer, and he may as well be discussing orbital velocity with no understanding of physics)
C) Miller goes full fascist in threatening the courts that if they don’t give him the outcome he (and the Administration) want, there will be consequences. For the life of me, I can’t understand standing silent when someone goes full fascist in a press conference.
(And what, you are wondering, was the professor’s first point, the one I skipped? That the very purpose of the suspension clause was, in my words , not his, was to give Congress (i.e., the people) the power to declare a “state of exception” in time of emergency. Even Rome didn’t give the diktator the power to declare himself diktator.)
To point out Miller is illiterate in matters of law is not to argue with Miller. It is to point out the clear and present danger of this Administration. Yes, Roberts and Sotomayor are pronouncing dark murmurings, but a more direct “THIS IS UTTER FASCIST BULLSHIT AND HERE’S WHY!” doesn’t hurt. Especially when the fascist bullshit is coming from inside the White House, publicly and unashamedly.
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