Last year, the Trump administration was considering suspending the constitutional right of habeas corpus.
Some officials pushing President Trump’s mass deportation agenda, chiefly White House deputy chief of staff Stephen Miller, wanted to get rid of the key right, which compels the government to explain in court why it has detained a person. Miller’s goal was to prevent immigrants in government custody from receiving hearings or court orders blocking their deportation.
This idea alarmed others in the Trump administration, who saw it as legally weak and likely to be overturned in court. Among them was Will Scharf, a right-wing lawyer serving as White House staff secretary, who was the last person who saw paperwork before it reached the president’s desk.
In April, Scharf wrote a secret memo to White House chief of staff Susie Wiles warning of the dangers of suspending habeas corpus, pointing out its legal pitfalls. He also wrote another memo to Wiles warning against invoking the Insurrection Act, another legally questionable idea pushed by some in the administration, including Miller.
In October, Scharf wrote a memo against invoking the act, saying that it “serves as a break-the-glass exception to the traditional, general prohibition on the use of the military in the domestic setting.” He pointed out that it was last used in 1992 during riots in Los Angeles at the request of the California governor, and its invocation would be unprecedented to use against immigration protesters.
After Alex Pretti was killed by federal agents in Minnesota in January, administration officials, led by Vice President JD Vance and Miller, revived the idea of using the Insurrection Act. Ultimately, it wasn’t invoked, and the government also did not suspend habeas corpus.
But the Trump administration has still continued to use authoritarian means to implement the president’s mass deportations, treating immigrants who have been in the country for decades as if they have just shown up at a U.S. border. The fact that Trump has not resorted to extreme legal arguments is only a minor victory as violent deportations and draconian immigration policies continue, as he considers federal courts inconvenient obstacles rather than a constitutionally mandated check on his power.
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