Will Americans soon witness President Trump’s issuance of an executive order suspending habeas corpus for criminal aliens and American enemies who have participated in an invasion against the United States, and who have chosen to remain in our country against the rule of law?
The writ of habeas corpus goes back to 500 B.C. and is a legal action which allows a prisoner to challenge the authority of the jailer to continue holding him. The legal term habeas corpus literally means “you should have the body” in Latin. This legal privilege allows incarcerated citizens to seek relief from unlawful confinement as outlined in the Suspension Clause of the U.S. Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
The privilege of the writ of Habeas Corpus has been suspended four times: in areas that were in rebellion during the American Civil War; in eleven South Carolina counties that were under threat by the Ku Klux Klan during Reconstruction; in two provinces of the Philippines during an insurrection in 1905 when the Philippines were a U.S. territory; and in Hawaii subsequent to the bombing of Pearl Harbor by the Empire of Japan.
In suspending the writ, Trump would be following in the footsteps of Abe Lincoln, who suspended habeas corpus as a war power to protect the Union when the public safety required it. And today’s criminal interference by judges — who seek to prevent arrests and deportations of criminally-present terrorists, murderers, sex-traffickers, and rapists — requires that Trump consider suspending the writ for those enemy aliens to whom lawless judges are giving aid and comfort. This would involve a proper invocation of the Alien Enemies Act, declaring an unlawful invasion of our country (as facilitated by a treasonous Biden Administration) and empowering the Department of Defense to make arrests of the invaders.
The Alien Enemies Act of 1798 grants wartime authority to the president to “detain or deport the natives and citizens of an enemy nation. The law permits the president to target these immigrants without a hearing and based only on their country of birth or citizenship.” Although the act has been abused in the past by Democrat presidents Woodrow Wilson and Franklin Roosevelt to unlawfully incarcerate Americans of foreign ancestry during the first and second world wars, Trump is not expected to use his executive powers to illegally arrest American citizens the same way Democrat presidents have done in the past, but only to detain and deport criminal perpetrators designated as illegal aliens and enemy combatants.
When Lincoln suspended the writ, he claimed he could do so under his war powers as commander in chief. And when federal troops arrested one John Merryman in Cockeysville, Maryland, for “recruiting, training, and leading a drill company for Confederate service,” Merryman’s lawyer petitioned Supreme Court chief justice Roger Brooke Taney for a Writ of habeas corpus. Taney, a Democrat, ordered Lincoln “to produce the prisoner in court.” Lincoln ignored Taney, underscoring the power of the Executive as a co-equal branch of government that cannot be ordered around by another co-equal branch.
Article IV, Section 4 of the Constitution that allows states to apply to the Executive for assistance with regard to domestic violence, when the Legislature is not in session: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” Thus, Lincoln could feel comfortable suspending the writ, even though the power to do so is written in Article I.
However, on July 4, 1861, Lincoln delivered a message to a special session of Congress, referring to his suspensions of the writ. Lincoln quoted the Suspension Clause, justifying his action on the ground that “we have a case of rebellion, and the public safety does require” a suspension of the writ. He then continued by saying, “Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that, in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented… by the rebellion… Whether there shall be any legislation upon the subject… is submitted entirely to the better judgment of Congress.”
Ultimately, Congress would be quiet on Lincoln’s suspension of habeas corpus until March 3, 1863, when legislation was finally enacted approving Lincoln’s action. This has had the effect of setting a precedent that the president may indeed suspend the writ as a war power in a time of “dangerous emergency.”
The National Constitution Center agrees that the Suspension Clause does not specify which branch of government may suspend habeas corpus, stating further, “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.” Many legal scholars have taken this to mean that the president may, under the proper circumstances, such as an illegal invasion across an open border, invoke the suspension of habeas corpus on his own authority as a war power.
Not only may enemy aliens who participated in a treasonous invasion of our country be denied habeas corpus, but U.S. citizens who have aided and abetted these enemies may be classified as enemy combatants and tried before military tribunals, if Supreme Court justice Brett Kavanaugh is to be believed. Lindsey Graham thoroughly questioned Kavanaugh on this point at his confirmation hearing before he became a Supreme Court justice.
So, President Trump has legal precedent on his side. And it would be no less than ironic if Trump decides to use the Constitution itself to fight anti-constitutionalist judges to enable the arrests and deportations of true enemies of our American republic.
Paul Dowling’s book on the Constitution is Keeping a Free Republic — downloadable for $1.99. Additionally, Paul has contributed to Independent Sentinel and Free Thought Matters.
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