“First came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for me — and by that time there was nobody left to speak up.”
Pastor Martin Niemöller
During a recent interview with Meet the Press correspondent Kristen Welker, President Trump made the startling, although not surprising, revelation he was not certain he could support or obey the Constitution, specifically where the rights of “due process” and Habeas Corpus (requiring any person in custody to be brought before a judge to determine if their confinement is lawful) were concerned. His waffling further suggests a willingness to ignore another of his Article II obligations to “take Care that the Laws be faithfully executed.”
More frightening is presidential advisor, Stephen Miller’s recent announcement the Trump administration was “actively looking at” suspending the right of Habeas Corpus across the board.
Article I, Section 9 of that pesky Constitution Trump blames for impeding his authoritarian instincts states, “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.”
As a majority of the 535 members of Congress, who pledged to, “support and defend the Constitution of the United States against all enemies, foreign and domestic;” are apparently willing to let Trump govern unilaterally, it would be enlightening to ask each member of Congress if they would support suspending Habeas Corpus.
Given the Supreme Court’s presidential immunity decision, unitary executive leanings and tacit acceptance and approval of allowing Trump to govern via executive orders, rather than requiring the active involvement of Congress, as a co-equal branch, to exercise its enumerated powers and responsibilities, one wonders who will hold the Executive branch in check and demand the nation’s laws be followed and Constitutional rights protected.
Historically, it has been understood the power to suspend Habeas Corpus cannot be delegated to the Executive branch. While a President may effectively suspend Habeas Corpus, as Lincoln did during the Civil War, such actions are only valid if Congress subsequently authorizes them.
The suspension of Habeas Corpus has only been authorized four times in U.S. history; during the Civil War, Reconstruction in South Carolina, the 1905 insurrection in the Philippines, and in Hawaii after the 1941 attack on Pearl Harbor.
Following a pattern often employed by leaders in countries as their democracies were transformed into autocratic states, Trump has demonstrated an appetite to expansively redefine “invasion” and declare unsubstantiated “national emergencies” to justify the expansion of his unilateral powers, frequently at the expense Constitutional rights. Combined with his not-so-subtle campaign to target his perceived enemies in the media, legal community, on collegiate campuses and among legal immigrants, all Americans should be concerned for the future of our Republic and their personal freedoms as Trump has publicly stated, “The homegrowns are next,” and is actively exploring a proposal to detain and deport U.S. citizens without due process.
John Adams warned a “vigilant and active citizenry was crucial for preserving freedom, warning that freedom once lost is lost forever … emphasizing the importance of individuals actively participating in government and defending their rights, as passive acceptance of tyranny would result in the erosion of liberty.”
Preserving a free, democratic society is not a spectator sport!
