Senior White House advisor Stephen Miller made some comments this afternoon that are already getting a lot of media attention. Miller suggested that the Trump administration was looking at ways to suspend due process for illegal immigrants, specifically habeus corpus rights.

White House deputy chief of staff Stephen Miller told reporters Friday that the Trump administration is “actively looking at” suspending habeas corpus — a legal procedure that allows people to challenge a government’s decision to detain them.

“The privilege of the writ of habeas corpus can be suspended in a time of invasion,” Miller told reporters Friday. “So it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”

Suspending habeas corpus would require, under the Constitution, that the country be “in Cases of Rebellion or Invasion the public Safety may require it.”

Habeus Corpus has been suspended four times in US history, starting with it's suspension during the Civil War by President Lincoln.

On April 27, 1861, Lincoln suspended the writ of habeas corpus between Washington, D.C., and Philadelphia to give military authorities the necessary power to silence dissenters and rebels. Under this order, commanders could arrest and detain individuals who were deemed threatening to military operations. Those arrested could be held without indictment or arraignment.

On May 25, John Merryman, a vocal secessionist, was arrested in Cockeysville, Maryland. He was held at Ft. McHenry in Baltimore, where he appealed for his release under a writ of habeas corpus. The federal circuit court judge was Chief Justice Roger B. Taney, who issued a ruling, Ex parte Merryman, denying the president’s authority to suspend habeas corpus. Taney denounced Lincoln’s interference with civil liberties and argued that only Congress had the power to suspend the writ.

Lincoln did not respond directly to Taney’s edict, but he did address the issue in his message to Congress that July. He justified the suspension through Article I, Section 9, of the Constitution, which specifies a suspension of the writ “when in cases of rebellion or invasion the public safety may require it.”

Although military officials continued to arrest suspected Southern sympathizers, the incident led to a softening of the policy. Concern that Maryland might still secede from the Union forced a more conciliatory stance from Lincoln and the military. Merryman was remanded to civil authorities in July and allowed to post bail. He was never brought to trial, and the charges of treason against him were dropped two years after the war.

The obvious difference is that there was an actual Civil War taking place at this time in which armed groups of soldiers were firing on one another. The other three cases in which habeus corpus were suspended are as follows:

• It was suspended by President U.S. Grant in 1871 in several counties of South Carolina to combat the KKK.
• It was suspended in the Philippines in 1905 during an insurrection.
• It was suspended in Hawaii in 1941 after the bombing of Pearl Harbor.

At the moment we're not in a shooting war and the flow of illegal immigrants over the border has slowed to a trickle thanks to the Trump administration. 

The argument I've seen a lot lately, from Trump and others, is that it's unfair that illegal immigrants can cross the border by the millions but then when we want to remove them we have to do it one at a time with a court hearing. That does strike me as pretty ridiculous, and yet I think the administration would have a hard time winning this habeus corpus argument in court. Even Stephen Miller seems to be acknowledging it would be an uphill battle.

Ultimately, this would probably end up before the Supreme Court and here's something Chief Justice Roberts said earlier this week before this particular issue came up.

Chief Justice John Roberts stressed the importance of judicial independence during public remarks Wednesday.

“The judiciary is a coequal branch of government, separate from the others with the authority to interpret the Constitution as law and strike down, obviously, acts of Congress or acts of the president,” Roberts said at an event in his native Buffalo, New York.

The judiciary’s role, Roberts added, is to “decide cases but, in the course of that, check the excesses of Congress or the executive.”

And then there's this.

Supreme Court Justice Amy Coney Barrett, in an essay co-written with the attorney Neal Katyal for the National Constitution Center, noted that the clause in the Constitution addressing the possible suspension of the writ of habeas corpus “does not specify which branch of government has the authority to suspend the privilege of the writ.”

“But most agree that only Congress can do it,” the essay says.

“President Abraham Lincoln provoked controversy by suspending the privilege of his own accord during the Civil War, but Congress largely extinguished challenges to his authority by enacting a statute permitting suspension,” the article notes.

“On every other occasion, the executive has proceeded only after first securing congressional authorization,” Barrett and Katyal wrote.

Of course you never know what could happen, but my guess is there would instantly be four votes against this and probably 2-3 more.

This strikes me as something like Trump's promise to build a wall and make Mexico pay for it. That never really happened but it was a signal of how serious he was about the issue. I don't think this will happen either but maybe the suggestion is meant to expand the Overton Window a bit.