US Government considering suspending habeas corpus

95 pointsposted 9 months ago
by intunderflow
(bbc.com)

40 Comments

rayiner

9 months ago

Article I, Section 9 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.

I wonder what we can find in the “emanations from penumbras” of the word “invasion.”

UncleMeat

9 months ago

It is important to understand that the "penumbra" used as part of the justification of Roe expands the liberty of individuals and limits the power of the state. There is further an entire amendment (the 9th) that expressly says that such penumbras exist and that the constitution does not contain an exhaustive list of liberties.

This is wildly different than saying "well, invasion can mean anything so its fascism time."

rayiner

9 months ago

> It is important to understand that the "penumbra" used as part of the justification of Roe expands the liberty of individuals and limits the power of the state.

So does Lochner. There’s a libertarian reading of the constitution where you can justify interpreting the text so as to maximize individual liberty. But almost nobody subscribes to that. They just like reading the text expansively when it comes to sexual liberties and narrowly when it comes to economic ones. Which is certainly the exact opposite of what the founders were concerned about.

UncleMeat

9 months ago

Even if this was true, this is totally unrelated to the question of habeas corpus. "I don't like the ways in which the 9th amendment and the substantive due process clause have been applied" is a fine thing to believe, I guess. But there zero connection to any path to Trump establishing full blown fascism by saying we are under invasion and locking up his political enemies.

rayiner

9 months ago

Of course it’s related. If “emanations from penumbras” is valid constitutional reasoning, it’s valid for everybody. It’s valid for the people who want to strike down state laws regulating morality, and it’s valid for the people who want to expedite deportation of illegal immigrants.

The Constitution says habeas may be suspended “when in Cases of Rebellion or Invasion the public Safety may require it.” “Rebellion” and “Invasion” are not textual prerequisites for suspending habeas corpus, but rather specific emanations from a broader penumbra encompassing threats to “public Safety.” Incursions into U.S. territory by illegal aliens and foreign gangs easily falls within that penumbra. Moreover, the word “invasion” isn’t necessarily limited to military invasions. It can refer to incursions by foreign elements, as in the phrase “invasive species.” That confirms that habeas corpus can be suspended in response to incursions onto U.S. soil by illegal aliens and gangs. And after all, the founders couldn’t have anticipated the rise of sophisticated international criminal organizations like MS13, which rise to the level of quasi-state actors. A small band of MS13 armed with modern weapons of war would be comparable to a military detachment armed with muskets in 1789.

And yes, while suspension of habeas is mentioned in Article I, it’s only listed as a negative limitation. It doesn’t say only Congress can suspend habeas. Just like how when Article II says “the executive Power shall be vested in a President of the United States of America,” that doesn’t mean that Congress can’t also create independent agencies that exercise that power.

UncleMeat

9 months ago

Is your claim seriously that all expansive readings of any part of the constitution, even those that expand the power of the state rather than limiting the power of the state, are somehow the fault of substantive due process?

rayiner

9 months ago

The constitution considers various tradeoffs and draws the lines where it draws them. The constitution creates quite a powerful government in some respects, and limits government power in other respects. And while the federal government is one of enumerated powers, the state governments were always understood to have the general police power, limited only as set forth in their respective constitutions or federal constitutional provisions.

There is no meta-principle by which you can say expansive, results-oriented interpretations are acceptable to move the lines in one direction but not the other. If emanations from penumbras is a valid interpretive methodology it’s valid for everything.

mindslight

9 months ago

"require" implies that law enforcement and/or the courts are overwhelmed, as in the case of sustained open conflict that needs to be first put down and then sorted out later. A demented wanna-be dictator's frustration that it is too hard to disappear people out of civil society does not qualify.

Or are you saying that Trump's policies on this issue are also so incompetent that law enforcement has now become overwhelmed?

mdhb

9 months ago

Self identified libertarians have for at least 20 years now seemed to have had an almost singular focus on age of consent laws and tax avoidance. It’s a magnet for the dregs of society.

mindslight

9 months ago

"They did it first!" is the reasoning of a child.

rayiner

9 months ago

[flagged]

mindslight

9 months ago

Except your "two-way street" just runs between two different camps of authoritarians, writing off the criticisms from those of us earnestly interested in individual liberty. Your rationalization is essentially a high-worded version of the bog standard mutual partisanship.

rayiner

9 months ago

[flagged]

mindslight

9 months ago

I can't tell how you intend to apply that concept to form an actual argument. It seems like you're just grasping at any straw that might justify continuing to support this anti-American neofascist movement, even as the plain reality keeps on revealing itself.

user

9 months ago

[deleted]

rayiner

9 months ago

[flagged]

mindslight

9 months ago

So you were merely rephrasing the same "both sides" false dichotomy in terms of yet another abstract concept, to continue rationalizing your support for fascism? If the system of autocratic authoritarianism has merit on its own, then why the need to continually sugar coat it?

At least Yarvin had the guts to advocate for autocracy directly (old Yarvin, that is. before he got corrupted by the taste of power).

rayiner

9 months ago

[flagged]

mindslight

9 months ago

Why do you keep trying to avoid responsibility for what you are directly supporting by trying to blame this "other side" ? It's pathetic.

From the perspective of individual rights and liberty, there is only one side that is destroying our country right now. If this "other side" were in power, my quarrel would be with them. But they are not - "your side" is.

rayiner

9 months ago

> From the perspective of individual rights and liberty, there is only one side that is destroying our country right now.

"Individual rights" is the tail on the constitution's "democratic republic" dog. It's just as bad when the public's right to regulate individual conduct is incorrectly limited in service of "individual rights," as when individual rights are incorrectly limited in service of expanding government power.

> If this "other side" were in power, my quarrel would be with them. But they are not - "your side" is.

The other side is in power, insofar as we are living with 60 years of precedents based on "emanations from penumbras." And about 30 years before that sanctioning an unconstitutional administrative state. If we are playing Calvinball, why should I be upset that the government isn't adopting a textualist-originalist view of the suspension clause?

mdhb

9 months ago

[flagged]

rayiner

9 months ago

Are you a partisan? Do you think "emanations from penumbras" is valid constitutional reasoning?

gooseus

9 months ago

Without habeas corpus, laws aren't worth the paper they're written on.

penguin_booze

9 months ago

Without the interpretation of laws in the same spirit in which it was written, laws are never worth anything. No amount of verbiage and legalese can convey the spirit, so laws, in any of its material form, are already a folly.

fakedang

9 months ago

ICE arrested the Mayor of Newark too. For protesting.

John23832

9 months ago

There’s really not much to say other than, they really shouldn’t.

jebarker

9 months ago

A more accurate title would be "Trump Administration considering suspending habeas corpus". As much as they'd like to be they don't encompass the whole US government and, as the article says, the ability to suspend habeas corpus is something Congress can do, not the president or his aide.

yladiz

9 months ago

The issue is that the president and executive in general don’t have the power to do a lot of things they have, like withhold appropriated money, but they do it anyway and don’t care if the courts reprimand them. So yes, in theory only congress, in practice it only depends on if the executive in general (e.g. FBI) acts as if it is suspended.

belter

9 months ago

That is the actual title but posters are forced to change them or they get flagged immediately here.

dragontamer

9 months ago

The President suspending habeas corpus means that FBI, ATF, ICE and other agencies no longer act appropriately, as these agencies are directly in control of the President.

Sure, major and powerful agencies aren't "the US Government" in general. (There's still Congress and Courts). But that's still not a force of people you want to be messing with.

Suspending Trump's illegal order immediately should be the priority. Or otherwise preempting it before it gets too far. Commanding entire agencies to suspend parts of the Constitution unilaterally is not going to be good for us.

> the ability to suspend habeas corpus is something Congress can do, not the president or his aide

Congress isn't the group who has police forces and prisons to illegally detain you in. Its the President who owns and controls the police forces and prisons who can issue orders to ignore habeas corpus.

derelicta

9 months ago

Understandable. The US cannot afford to lose its last colonies in the Middle East and in Asia, thus the need for state terrorism, censorship and indefinite detention of politically-active and class-aware proles.