https://www.stevevladeck.com/p/148-suspending-habeas-corpus
"....First, the Suspension Clause of the Constitution, which is in Article I, Section 9, Clause 2 is meant to limit the circumstances in which habeas can be foreclosed (Article I, Section 9 includes limits on Congress’s powers)—thereby ensuring that judicial review of detentions are otherwise available. (Note that it’s in the original Constitution—adopted before even the Bill of Rights.) I spent a good chunk of the first half of my career writing about habeas and its history, but the short version is that the Founders were hell-bent on limiting, to the most egregious emergencies, the circumstances in which courts could be cut out of the loop. To casually suggest that habeas might be suspended because courts have ruled against the executive branch in a handful of immigration cases is to turn the Suspension Clause entirely on its head.
Second, Miller is being slippery about the actual text of the Constitution (notwithstanding his claim that it is “clear”). The Suspension Clause does not say habeas can be suspended during any invasion; it says “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.” This last part, with my emphasis, is not just window-dressing; again, the whole point is that the default is for judicial review except when there is a specific national security emergency in which judicial review could itself exacerbate the emergency. The emergency itself isn’t enough. Releasing someone like Rümeysa Öztürk from immigration detention poses no threat to public safety—all the more so when the release is predicated on a judicial determination that Öztürk … poses no threat to public safety.
Third, even if the textual triggers for suspending habeas corpus were satisfied, Miller also doesn’t deign to mention that the near-universal consensus is that only Congress can suspend habeas corpus—and that unilateral suspensions by the President are per se unconstitutional. I’ve written before about the Merryman case at the outset of the Civil War, which provides perhaps the strongest possible counterexample: that the President might be able to claim a unilateral suspension power if Congress is out of session (as it was from the outset of the Civil War in 1861 until July 4). Whatever the merits of that argument, it clearly has no applicability at this moment.
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Fifth, and finally, Miller gives away the game when he says “a lot of it depends on whether the courts do the right thing or not.” It’s not just the mafia-esque threat implicit in this statement (“I’ll make him an offer he can’t refuse”); it’s that he’s telling on himself: He’s suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose. That’s not, and has never been, a viable argument for suspending habeas corpus. Were it otherwise, there’d be no point to having the writ in the first place—let alone to enshrining it in the Constitution.".... (more)
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