Our most recent book is The Comeback: The 2024 Elections and American Politics. The second Trump administration is has been full of ominous developments.
Maggie Haberman and Jonathan Swan at NYT:
Last spring, Will Scharf, an arch-conservative lawyer serving as the White House staff secretary, wrote a secret memo to the chief of staff that reflected growing unease in the West Wing about one of the extreme measures being weighed by Stephen Miller, the powerful adviser driving President Trump’s deportation campaign.
Dated April 29, 2025, and stamped “confidential,” the memo was careful and lawyerly but amounted to a warning against end-running the rule of law. The subject line read: “THE WRIT OF HABEAS CORPUS.”
Habeas corpus — the centuries-old right to force the government to justify, before a judge, why it has locked a person up — is enshrined in Article I of the Constitution. Mr. Scharf’s memo, in its unassuming way, was a blinking red warning light. The second Trump White House was deliberating an explosive new claim of presidential power: the suspension of habeas rights for unauthorized immigrants.
The suspension of habeas corpus has occurred just a handful of times in U.S. history, and always under the most dire circumstances of war or invasion. Yet to a greater degree than previously known, administration officials, encouraged by Mr. Trump, actively weighed taking that step in the early months of his second term — this time to accelerate the mass deportation of immigrants in the country illegally.
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Suspending habeas corpus was one of two radical ideas Mr. Miller had been pushing that alarmed Mr. Scharf. The other was invoking the Insurrection Act to deploy the military to enforce the law on American streets as protests grew against deportation sweeps.
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But the documents reflected alarm among a small group of senior aides. They felt that Mr. Miller’s eagerness to test the limits of executive power — and to accuse other branches of encroaching on it, echoing a president who bristled at any constraint — risked steering the administration, and the country, in a dangerous direction.
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“The Constitution is clear, and that of course is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion,” Mr. Miller said. “So it’s an option we are actively looking at.”
Mr. Miller was intentional about his choice of words. The president had been trying to recast the immigration surge across the southern border during the Biden years as an invasion by enemy forces — a highly dubious claim intended to unlock extraordinary powers, intended only for wartime, to repel the migrants. Mr. Miller kept using the word “invasion” even after border crossings had fallen to multidecade lows.
“Look, a lot of it depends on whether the courts do the right thing or not,” Mr. Miller added to the reporters, a not-so-subtle warning to federal judges to give the president the leeway he was seeking.
After weeks of uproar, and disagreement between government officials on whether it could be done, the proposal eventually faded from view. Asked about it later, Mr. Trump appeared to acknowledge discussing suspending habeas corpus, but downplayed that the discussions were serious, and suggested it was not worth doing so just then.
