Stephen Miller v. the Rule of Law

White House Deputy Chief of Staff Stephen Miller recently said, “The writ of habeas corpus can be suspended in a time of invasion, so that is an option we’re actively looking at.” The decision, he said, “depends on whether the courts do the right thing or not.” 

Among the rights the Constitution guarantees, habeas is one of the most fundamental. In essence, it is the last line of defense when the government takes away someone’s liberty: It is intended to ensure that anyone imprisoned by the government can challenge the loss of their freedom in a court of law.

Miller’s threat to unilaterally suspend habeas would almost certainly fail. Habeas has never been limited to citizens of the United States. Thomas Jefferson wrote in 1798 to a potential asylum-seeker that, in the U.S., “The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.” 

As legal scholars noted following Miller’s pronouncement, “the near-universal consensus is that only Congress can suspend habeas,” not the president

But Miller’s threat should still be taken seriously — because the whole point of suspending habeas would be to take courts out of the equation.

In the months since inauguration, the Trump administration has taken numerous actions that violate laws, constitutional provisions, and even court orders that interfere with its plans for mass deportations. Miller has been at the center of all of them. But at times courts have successfully blocked planned deportations and released people who were unjustly detained — so it is no surprise that now he’s talking of entirely eliminating judicial oversight. 

“Stephen Miller has been sharpening his teeth for this moment,” an anonymous ally of Miller told NBC News, who added that Miller is the “most consequential” official in the White House since then-Vice President Dick Cheney’s tenure. 

Miller’s formal title is Deputy Chief of Staff for Policy, but his influence far exceeds that, particularly in matters of immigration. Trump said in an interview on “Meet the Press” that Miller’s rumored appointment to national security advisor would be a “downgrade.” 

Illegal Renditions and Attacks on the Courts

The starkest example of Miller’s disdain for the courts is the rendition and ongoing enforced disappearance of approximately 288 people to the notorious Terrorism Confinement Center prison in El Salvador, known as CECOT. All of these disappearances occurred without due process, and many in defiance of a March 15 court order by U.S. District Judge James Boasberg to stop transfers to El Salvador under the Alien Enemies Act. 

According to one news report, “White House Deputy Chief of Staff Stephen Miller ‘orchestrated’ the process in the West Wing in tandem with Homeland Security Secretary Kristy Noem [sic].”

Boasberg later found probable cause that the administration had carried out the renditions to El Salvador in contempt of court — violating his order not through any misunderstanding or miscommunication but “deliberately and gleefully.”

The Trump administration is also in ongoing and increasingly glaring violation of multiple court orders to ensure Maryland resident Kilmar Abrego Garcia’s release from custody in El Salvador and return to the United States. On March 31, an ICE official admitted in a court filing that Abrego Garcia was sent to CECOT, despite an immigration judge having granted him legal protection against deportation to El Salvador years before. Soon after, Maryland district judge Paula Xinis ordered the administration to ensure Abrego Garcia’s release from custody and return to the United States. 

According to the Atlantic, the government initially took steps to comply with the order, as it has in many other past wrongful deportations — but then the White House, led by Miller, took over the response, and the tone changed rapidly. “Marxist judge now thinks she’s President of El Salvador,” Miller tweeted about Xinis on April 4. The DOJ suspended, then fired, the lawyer who acknowledged Abrego Garcia’s deportation was in error. 

The administration continued stonewalling even after the U.S. Court of Appeals for the Fourth Circuit and the U.S. Supreme Court affirmed Judge Xinis’ order without any dissents. 

During a televised Oval Office meeting with Salvadoran president Nayib Bukele, Miller suggested to the press that Judge Xinis’ order was tantamount to asking the U.S. to “kidnap” Abrego Garcia. He insisted that there was no mistake, and Abrego Garcia belonged in prison in El Salvador. He also radically misrepresented the Supreme Court’s order that the government facilitate Abrego Garcia’s release from custody and return to the United States. Miller claimed that the justices unanimously reversed the “main components” of Xinis’ order, when in fact the court had unanimously affirmed it. 

Weeks after Judge Xinis’ order, Abrego Garcia is still in prison in El Salvador, with no end in sight. (He was transferred to a different prison — making him the only person confirmed to have left CECOT — and allowed to meet briefly with U.S. Senator Chris Van Hollen (D-MD). Other members of Congress who traveled to El Salvador have been denied access to Abrego Garcia and all of the detainees sent to CECOT.) 

The administration has not only disobeyed court orders; it also attacked the judges issuing them. On X, after Boasberg’s order, Miller complained about “the insane edicts of radical rogue judges usurping core Article II powers.” In a Fox News interview, border czar Tom Homan said, “I don’t care what the judges think.” Days later, Attorney General Pam Bondi appeared on Fox to ask why Judge Boasberg was “trying to protect terrorists.” Trump himself denounced judges who ruled against the administration in deportation cases as “USA HATING” and “MONSTERS” on Memorial Day.  

Miller’s attacks on the judiciary have been near constant, and they have not been restricted to Boasberg and Xinis. To give only a few examples, he described the order requiring the release of Tufts University student Rümeysa Öztürk from custody as a “judicial coup.” He used the same language when a judge in Boston forbade apparently imminent deportations of migrants to Libya. 

At a minimum, this is irresponsible rhetoric in the current environment. A Reuters investigation found that at least 11 federal judges who ruled against the administration have had threats of violence or harassment directed at their families, including Boasberg. 

Congress Must Defend Our Rights and the Rule of Law

Disturbing as the attacks on judges are, the people in greatest immediate danger are the hundreds of prisoners disappeared to El Salvador. Apart from Abrego Garcia, they have not been able to communicate with the outside world. Trump administration officials refuse to confirm whether they are alive. 

The only real information families have received since the initial disappearances was a video by One America News Network, narrated by former Representative Matt Gaetz (R-FL) as he accompanied several members of Congress on a tour of CECOT. Fifteen minutes into the video, Gaetz walks to the part of the prison where the Venezuelan men are being held. “Deported Tren de Aragua gangbangers jeered and shouted,” the New York Post wrote in an article describing the Gaetz video.

But what the men are shouting in Spanish is not a taunt. As a subtitled version of the footage released by the Immigrant Defenders Law Center points out, they are shouting “Freedom,” and “We have families! We are kidnapped!” Reuters noted that the prisoners are also making a hand gesture that domestic abuse and trafficking victims use to ask for help, which originated during the COVID-19 pandemic and spread widely since then. 

Families of the prisoners told reporters that they were devastated by the video — but at least they knew their husbands and sons were alive. 

It is not acceptable for the government of El Salvador to deny some congressional delegations access to CECOT while welcoming other current and former U.S. officials who are willing to pretend that all of the men transferred there are terrorists and ignore their pleas for help. 

Members of Congress from both parties who care about basic humanity and the rule of law should demand a full list of all prisoners taken from the United States to El Salvador as well as confirmation of their current whereabouts. They should also demand access to CECOT and other prisons where the detainees are held, the opportunity to speak to them privately, and compliance with court orders to bring them home. 

Congress must also investigate Miller’s role in the El Salvador renditions and other unlawful acts. It is clear that he was a central figure in the decisions to violate court orders, but a judge can only investigate contempt in the context of a specific case. Congress, unlike the courts, does not have to limit its inquiries to specific “cases or controversies,” and it has wide latitude to seek testimony and documents from any witness who might be willing to cooperate. If any branch of government can uncover the full scope of Miller’s —and the administration’s — efforts to undermine the courts, it is Congress. 

Finally, Congress should refuse to pass the reconciliation bill’s massive increases in funding for immigrant surveillance, detention, and deportation given the abuses that have already occurred with existing resources. It is particularly essential that the Senate reject a provision in the House-passed bill that would make it more difficult for federal courts to enforce judicial orders or hold the administration in contempt. 

This administration has proven far too willing to break the law in its immigration crackdown. The last thing Congress should do is make it harder for courts to enforce their orders.