Trump Writes Congress out of the Constitution—and Congress Says Fine

On the habeas issue, Stephen Miller’s pompous primer on suspension of habeas corpus, coupled with the announcement that “we’re actively looking at [it],” was risible and unsettling in equal measure. The constitutional command he was mangling is directed to Congress, not the executive, which is why it is in Article 1, along with other definition of congressional power. The recognition that only Congress can suspend it is essentially universal, consistently reaffirmed in court opinions from early in the nineteenth century, which themselves apply the previous ensconced practice from England.

Moreover, Miller ham-handedly slices off the limiting, second half of the clause: that suspension can occur only when “the public Safety may require it.” Whatever national crisis Trump is attempting to manufacture about the presence of immigrants in the country, the public safety does not require that courts not consider the due process rights of detainees. And Trump’s ensuing suggestion that the decision not to suspend is contingent on “whether the courts do the right thing”—is overbearing and thuggish.

But as bad as all that is, the Qatari 757 deal is even more blatant in its contempt for constitutional norms. The plane would replace Air Force One during the pendency of Trump’s tenure and then be given to his presidential foundation, created after his presidency, presumably for his use. There is, however, a small constitutional snag.