Deportations: Miller's threat to the courts

White House Deputy Chief of Staff Stephen Miller speaks to reporters

The Trump administration is considering "an act far more radical than any that has come before"

(Image credit: Tom Brenner for The Washington Post via Getty Images)

published 28 May 2025

The Trump administration is considering "an act far more radical than any that has come before," said Ruth Marcus in The New Yorker. In his fervor to deport migrants without due process, deputy chief of staff Stephen Miller recently said the administration is "actively looking" at suspending habeas corpus, the fundamental constitutional right requiring the government to allow detained people to defend themselves in court. Miller isn't a lawyer, but seemed "happy to play one" when he claimed Trump can unilaterally suspend habeas corpus to proceed with mass deportations. The Constitution makes clear that habeas corpus can be suspended only in cases of "rebellion or invasion," and that Congress must authorize this extreme step. It has happened just four times, most recently after Pearl Harbor in 1941. Miller and Trump are frustrated that federal judges and the Supreme Court have repeatedly ruled that deportations require hearings. So Miller issued a warning: Whether Trump suspends habeas corpus, he said, "depends on whether the courts do the right thing or not." In other words: Rule in our favor, Chief Justice John Roberts, or we'll render you irrelevant.

Like most conservatives, I support "getting illegal immigrants out of the country," said Rich Lowry in National Review. But the claim that there's an ongoing "military invasion" of the U.S. is nonsensical. The influx of migrants seeking work in the U.S. in recent years "has no military aspect to it whatsoever." Trump and Miller are creating "a make-believe war" to justify their actions—"it's not 'break glass in case of emergency' but declare an emergency to break glass."

"The drama itself is the point," said Elie Honig in New York magazine. To deal with any problem, the Trump White House has to declare "an 'emergency,' an 'insurrection,' an 'invasion.' It's government by feigned panic, rule by performative hyperbole." To deport illegal immigrants, the administration could simply hold Title 8 hearings, which are often "perfunctory" and quick. But following the law is too inconvenient, especially if your goal is to deport 1 million immigrants a year, so the Trump gang would rather claim the country is under attack and suspend fundamental constitutional rights. Trump has "created a permanent crisis state," said Ross Rosenfeld in The New Republic. "Crises lend themselves to authoritarian rule," allowing Trump to "assume expansive emergency powers." Of course, "the real crisis" began when Americans put "a fascist back in office."