Stephen Miller came prepared for war — and he’ll defy the courts if he has to

There was a speculation boomlet a couple of weeks ago, after Donald Trump “promoted” national security adviser Mike Waltz to U.N. ambassador and temporarily tasked Secretary of State Marco Rubio with the job, that the name being floated as a permanent replacement was none other than Stephen Miller, Trump’s trusted adviser and current deputy chief of staff. That seemed a bit strange, since Miller has never shown any particular interest in global affairs beyond immigration, but he has lately become a more public face commenting on a wide range of issues so perhaps he wants to expand his role. We haven’t heard anything further much about that since it was first floated — maybe it was a trial balloon that fizzled.

It wasn’t easy to imagine Miller giving up his lifelong mission of expelling as many nonwhite people from America as possible, and in this administration that’s a full time job. In the wake of the shocking propaganda the administration put out to celebrate their deportation of alleged gang members to a notorious Salvadoran gulag, we are now seeing story after story all over local and national news, social media and influential podcasts about violent ICE raids of homes and businesses, ordinary people being snatched up when they show up for hearings, brutal vehicle stops even the arrests of judges and elected officials. Very few of the people being seized in these sweeps are gang members or accused of serious crimes.

All this is taking a toll on Trump’s approval rating. The latest round of polls showed him underwater across the board on these policies. But it’s also all part of Miller’s plan, and he is undaunted. As I wrote a couple of weeks ago about his decision to use the Alien Enemies Act of 1789, Miller understood that what this administration intended to do had no precedent. They seriously intend to deport millions of people.

Miller was well aware that the courts were a significant barrier. He was the architect of the ill-fated travel ban early in the first Trump administration, which was first struck down (and later watered down) by the courts. He understood that the president was going to have to be both aggressive and provocative. Trump’s team needed to assert presidential authority with total confidence, and ensure that the Supreme Court understood they would have to issue the final word on what the law says and how it will be enforced.

We’re only partway through that process. So far, Trump’s apparatchiks have not blatantly defied the courts, but they’re working them around the edges. Miller is the most vociferous in claiming that the plain words of a Supreme Court order mean the opposite of what they actually say, which is a highly disorienting thing to hear from a presidential adviser. The best example came with his Oval Office rant his rant proclaiming that the high court had ruled 9-0 in favor of the administration’s deportation of Kilmar Ábrego García when the exact opposite was true. (You can read the order here.)

In another case pertaining to the deportation flights to El Salvador, the Supreme Court ruled that actions on behalf of detainees must be brought in the districts where they are being held, and that intended deportees must be notified with enough time to petition for a writ of habeas corpus. In plain English, they must be allowed a hearing before they can be kidnapped and sent to the gulag.

So far, judges in three districts have ruled that the Alien Enemies Act, on which the administration’s policy is predicated, has been inappropriately invoked to justify this policy because of the fatuous assertion that the U.S. has been “invaded” by foreign gang members. That is not the plain meaning of “invasion” under this law. You could just as easily claim that the Beatles should have been deported because of the “British Invasion” of 1964.

The Alien Enemies Act isn’t the only trick Miller has up his sleeve, however. Last Friday he signaled that another, even more dangerous approach is coming. Despite the Supreme Court’s clear ruling that potential deportees have a right to petition for a writ of habeas corpus, Miller is now pondering invoking the “Suspension Clause” of the U.S. Constitution, which reads:

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.

CNN reports that Trump has been involved in these discussions. He hasn’t said anything specific about the question of habeas corpus, but when asked about he might do to counteract nationwide injunctions against his deportations, he said there were “very strong ways” to “mitigate” those: “There’s one way that’s been used by three very highly respected presidents, but we hope we don’t have to go that route.” 

Miller and Trump love to demean judges who rule against them and Miller has veered especially far into outlandish insults, routinely calling them radicals or “communists.” He may have miscalculated, however, in saying, “Look, a lot of it depends on whether the courts do the right thing or not.” As law professor Steve Vladeck observes in a highly informative summary of the issue: 

[Miller is] suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose. That’s not, and has never been, a viable argument for suspending habeas corpus. Were it otherwise, there’d be no point to having the writ in the first place — let alone to enshrining it in the Constitution.

One assumes that even if the judiciary is only operating out of an instinct self-preservation it might want to push back against that kind of direct threat. But you never know. 

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Law professor Leah Litman, whose book “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes” publishes this week, appeared on MSNBC recently. She observed that while Chief Justice John Roberts has recently said in public that the job of the judiciary is to check the “excesses” of the other branches, we also need to remember that he wrote the atrocious decision on presidential immunity and appears to be a longtime proponent of the “unitary executive theory,” which holds that the president has virtually unlimited power.

So it’s entirely possible that Miller won’t have to go nuclear and compel Trump to suspend habeas corpus after all. The Roberts court could simply decide that right is optional, despite the plain language of the Constitution. But it’s clear enough that Miller is prepared to keep raising the stakes, no matter what the courts do to stop him. Who knows what other cards he has left to play? He’s ready to fight a long war.