OPEN LETTER: Mr. Miller, Your Habeas Corpus Memo Is Proof of an Authoritarian Temptation

OPEN LETTER: Mr. Miller, Your Habeas Corpus Memo Is Proof of an Authoritarian Temptation

Introduction: The April 29 memo that reveals everything

A document dated April 29, 2026

On April 29, 2026, White House personnel secretary Will Scharf drafted an internal memo addressed to Chief of Staff Susie Wiles. This document, obtained by journalists Maggie Haberman and Jonathan Swan of the New York Times for their forthcoming book Regime Change: Inside the Imperial Presidency of Donald Trump, outlines the legal and historical implications of suspending habeas corpus on immigration matters. The Scharf memo is not a letter of encouragement. It is an internal warning: what your adviser Stephen Miller is proposing has only been done under conditions of war or armed rebellion — and even then, courts maintained minimum protections.

This memo became public in a precise context: the Trump administration was then locked in an explosive legal battle to deport dozens of Venezuelan men to brutal Salvadoran prisons, invoking the Alien Enemies Act — a law from 1798. Courts were resisting. Hundreds of habeas corpus petitions flooded federal dockets every week. And Stephen Miller, the intellectual architect of Trump's immigration policy, was floating a radical solution: completely suspend the right to habeas corpus for immigrants, blocking all judicial challenges to their detention or deportation.

What habeas corpus means

Habeas corpus — literally "that you have the body" in Latin — is one of the oldest foundations of Western law. It protects every individual from arbitrary detention by the state. It forces the government to bring a detained person before a court and legally justify that detention. It has existed in English law since the Magna Carta of 1215. In American law, it has been suspended only four times in U.S. history: during the Civil War by Abraham Lincoln, during the Philippines rebellion, in Hawaii after Pearl Harbor, and during a rebellion in South Carolina in 1871. In each of these cases, the country faced an armed rebellion or a war situation. That is not what America faces in 2026.

Will Scharf: a warning from the inside

The secretary who told the truth

Credit must be given to Will Scharf: he wrote an honest memo. He did not tell his superiors that Miller's idea was brilliant. He wrote that suspending habeas corpus "has only been undertaken in the gravest of circumstances," that it "effectively prevents government actors from arbitrarily detaining, imprisoning, or executing individuals," and that "even when Congress has explicitly suspended habeas corpus rights, the Supreme Court has held that an alternative process must be provided to respondents, with procedural safeguards akin to habeas corpus."

That last point is crucial. Even in historical cases where habeas corpus was suspended, American courts refused to allow the government to detain people in a completely arbitrary fashion. The George W. Bush-era case on Guantanamo Bay detainees proves the point: in 2008, the Supreme Court ruled that detainees had a constitutional right to file habeas corpus petitions despite the administration's claims that American courts lacked jurisdiction. If Bush could not fully suspend habeas corpus for foreign suspected terrorists at Guantanamo, Miller cannot do it for immigrants in Louisiana.

The internal opinion against Miller — ignored

Scharf shared this memo with Susie Wiles, the chief of staff. The reaction of White House aides, according to Haberman and Swan, was unambiguous: the idea was "insane." That word — in the original English text — is particularly revealing when it comes from direct collaborators of an administration that has systematically pushed constitutional limits. If even the people who support the most aggressive immigration policy find the idea crazy, the administration's internal barometer sensed something unusually dangerous.

Yet, one week after the memo's date, on May 9, 2026, Stephen Miller spoke publicly to journalists saying the administration was "examining" ways to circumvent habeas corpus. He cited the Constitution: "The privilege of the writ of habeas corpus may be suspended in times of invasion." And he claimed that unauthorized immigration constituted precisely such an "invasion."

The Miller proposal and its constitutional limits

Article I and the suspension clause

The Suspension Clause of the U.S. Constitution, found in Article I, Section 9, reads: "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." Two conditions must be met: rebellion or invasion, and public safety requires it. The Supreme Court has historically interpreted these conditions narrowly. The immigration crisis of 2025–2026, however severe, meets neither of these constitutional thresholds — as Scharf's memo makes clear in its review of precedents.

Miller's attempt to redefine immigration as "invasion" is not a novel legal theory. It has been tested in courts repeatedly, particularly in the context of the Alien Enemies Act of 1798 cases involving Venezuelan deportees. Courts have consistently found that the legal standard for "invasion" requires organized military force — not unauthorized border crossing, however large in scale. This is not a liberal vs. conservative legal question. It is a textual question, and the text does not support Miller's reading.

What "insane" means coming from inside an administration

When White House aides — people who helped design the aggressive immigration enforcement strategy that produced Camp 57, third-country deportations, and the detention of Akram Omar — describe a Miller proposal as "insane," the word carries weight. These are not civil libertarians or immigration lawyers. These are people who have consistently pushed the limits of executive authority on immigration. Their internal alarm is a data point about where the actual constitutional floor is, as opposed to where the rhetorical floor is.

The fact that the administration ultimately did not suspend habeas corpus is a small relief. But the fact that it was seriously discussed — that a formal memo was written, that the chief of staff was briefed, that Miller went public with it a week later — means the discussion was not idle. It means the administration was looking for a way to do it, and only backed down when its own legal staff confirmed the constitutional and historical impossibility.

The historical record: four suspensions in 800 years

Abraham Lincoln and the Civil War precedent

Abraham Lincoln suspended habeas corpus in 1861, at the outbreak of the Civil War, to allow the military detention of Confederate sympathizers suspected of sabotage along the railway lines critical for troop movement. His action was immediately challenged: Chief Justice Roger Taney, sitting as a circuit judge in Ex parte Merryman (1861), ruled that only Congress — not the president — had the power to suspend habeas corpus. Lincoln ignored the ruling. In 1863, Congress passed the Habeas Corpus Suspension Act, giving Lincoln retroactive and prospective authority. Even then, the war was a genuine armed rebellion with hundreds of thousands of casualties.

The Supreme Court's 1866 ruling in Ex parte Milligan further restricted the scope of military detention: when civilian courts are functioning, military tribunals cannot be used to try civilians. This principle — that constitutional rights survive even in wartime when courts remain operational — is precisely the principle Miller's proposal would violate. The courts of 2026 are functioning. They are, in fact, processing hundreds of habeas corpus petitions every week in immigration cases. Suspending habeas corpus in this context is not Lincoln's wartime necessity. It is something categorically different.

The Bush-Guantanamo precedent and Boumediene v. Bush

The most recent relevant precedent is Boumediene v. Bush (2008), in which the Supreme Court ruled 5-4 that foreign detainees held at Guantanamo Bay — outside American soil, declared by Congress to be beyond the reach of habeas corpus through the Military Commissions Act of 2006 — retained the constitutional right to challenge their detention in federal court. The majority opinion, written by Justice Kennedy, held that the Suspension Clause has extraterritorial reach and that Congress cannot simply legislate away the right to habeas corpus without meeting the stringent conditions of the Suspension Clause.

If Congress could not strip habeas corpus from foreign detainees at Guantanamo — held on foreign soil, accused of terrorism, captured in a war zone — it stretches credulity to argue that the executive alone could suspend habeas corpus for immigrants detained within the United States. This is the argument Scharf made. This is the argument Miller was not able to refute. And this is why the proposal remained, in the words of those who heard it, "insane."

The context: what was happening in immigration courts

Hundreds of habeas petitions filed every week

The reason Miller was looking for a way to suspend habeas corpus is straightforward: it was working. Detainees and their lawyers were filing hundreds of habeas corpus petitions every week in federal courts across the country. Judges were granting some of them. ICE was being ordered to release people it wanted to deport. The Akram Omar case — two court orders, both flouted — is one example. The Adriana Zapata case — one order, then reversed — is another. From Miller's perspective, the habeas corpus machinery was the single most effective obstacle to the administration's deportation goals.

Government prosecutors, according to available information, were overwhelmed or leaving their posts en masse. This is telling. Legal professionals representing the state in immigration courts — people whose job is to defend deportation policies — were resigning rather than continuing. Whether because the policies they were asked to defend exceeded legal limits they could accept, or because the caseload was unsustainable, or both — none of this signals institutional health.

ICE's detention capacity and the pressure to deport faster

The administration had also strained ICE's detention infrastructure to near its limits. Tens of thousands of people were held in facilities not designed for long-term stays — including state prisons like Angola in Louisiana. The pressure to process deportations faster was intense, and the courts were slowing things down. In this context, Miller's proposal was not abstract ideology. It was a practical solution to a practical problem, from the administration's perspective: remove the judicial brake on the deportation machine.

What that solution would have meant for the tens of thousands of detainees is clear from the cases already on the record: people like Akram Omar, with legitimate judicial protections, would have had no mechanism to challenge their detention. The answer to the court overload would have been to eliminate the courts.

Kristi Noem and the public dimension of the debate

When the Secretary of Homeland Security cannot define habeas corpus

The public dimension of the habeas corpus debate was crystallized in an exchange involving Kristi Noem, Secretary of Homeland Security. When asked by a senator to define habeas corpus, Noem was unable to provide a coherent definition of the term — the foundational legal right at the center of the administration's most consequential immigration battles. This exchange, widely reported, was not merely a moment of personal embarrassment. It revealed something structural: the administration was being led by people who did not understand, or did not care about, the constitutional foundations of the rights they were proposing to suspend.

This is not a partisan point. Understanding habeas corpus is not a liberal or conservative issue. It is a basic requirement for anyone exercising government authority over detention. A Secretary of Homeland Security who cannot define the right that governs everything ICE does is a Secretary whose judgment on whether to suspend that right cannot be trusted.

The investigative reporting that made the memo public

The fact that the Scharf memo became public is itself a function of the kind of investigative journalism that democratic societies depend on. Maggie Haberman and Jonathan Swan obtained the document as part of their book research. In a media environment where parts of the American press are either affiliated with the Trump administration or subject to growing legal and economic pressures, rigorous investigative work is increasingly valuable and increasingly rare. This memo — and what it reveals about the administration's intentions — is exactly the type of information the public needs to exercise its role in a democracy.

The impact on immigrants: detention as a weapon

Tens of thousands in detention

While these discussions were taking place at the White House, tens of thousands of people were held in ICE detention centers across the United States. Some for weeks. Others for months. Their families did not always know where they were. Their lawyers struggled to reach them. Immigration judges were receiving orders to dismiss cases. And habeas corpus — that fundamental right to ask a court to justify your detention — was their last resort.

This is precisely the last resort Miller wanted to eliminate. With habeas corpus suspended, there would be no judicial mechanism to challenge the legality of an ICE detention. Detained individuals would no longer be able to ask a federal judge to examine whether their arrest was legal, whether their rights had been respected, whether procedure had been followed. They would be left entirely to the administrative discretion of an agency whose exercise of that discretion we have already seen, in the cases of Akram Omar and Adriana Zapata.

The defense lawyers who fought and the prosecutors who resigned

Defense lawyers for immigrants were fighting to keep up. Case volumes were overwhelming. Emergency procedures were multiplying. Deadlines for filing challenges were tightening as the administration accelerated deportations. In this context, the proposal to eliminate habeas corpus was not an administrative management measure. It was a capitulation of the rule of law to political pressure.

The contrast between the lawyers who stayed and fought — who filed emergency motions, who worked through the night to prevent deportations of people like Akram Omar — and the proposal to make their work legally impossible is the sharpest possible illustration of what was at stake in the Scharf memo. Habeas corpus was not a bureaucratic technicality. It was the last line of defense for people who had no other recourse.

Miller's proposal in the international context

What the rest of the democratic world thinks

Western democracies are watching the American debate on habeas corpus with a mixture of astonishment and alarm. In Europe, the European Convention on Human Rights guarantees the right to habeas corpus in its Article 5. The Canadian Charter of Rights and Freedoms guarantees it in its Article 10. These rights are not suspended during aggressive immigration policy. They are considered absolute foundations of democratic law.

The idea that the United States — long held up as the model of liberal democracy — is seriously discussing suspending habeas corpus for immigration reasons sends a catastrophic signal to authoritarian regimes worldwide. Every dictatorship that holds political opponents without trial can point to the United States and say: even America considers this. It is an invaluable strategic gift to China, to Russia, to Iran, and to everyone who wants to demonstrate American hypocrisy on human rights.

The signal sent to the West's allies

NATO allies, Quad partners, G7 members — the entire democratic alliance is watching these American judicial developments with anxious attention. American moral authority in negotiations on human rights and democracy depends on a minimum of consistency between what America preaches and what it practices. When the United States — which condemns China for arbitrary detention of Muslims in Xinjiang — considers suspending the fundamental right against arbitrary detention at home, the message is devastating for American credibility.

The West, which I firmly support as the center of the democratic world, derives its legitimacy from its principles as much as from its military power. NATO is not only a military alliance — it is an alliance of values. And when the most powerful state in this alliance discusses suspending fundamental rights to accelerate deportations, those values are weakened for everyone.

The institutional reach of the debate

When politics becomes a weapon against institutions

The Scharf memo affair reveals something structural about the Trump administration: the tendency to treat rule-of-law institutions not as legitimate constraints but as political obstacles to overcome. Courts are obstacles. Judges are activists. Habeas corpus is procedural abuse. This rhetoric, repeated systematically, ends up reducing the legitimacy of institutions in public consciousness.

American intelligence, the Department of Justice, and now federal immigration courts are all, according to this rhetoric, institutions that the administration must circumvent rather than respect. When the executive systematically treats the other branches of government as political enemies, constitutional democracy is in danger — not in a theoretical and abstract way, but in a practical and immediate way.

The precedents we are creating

Every measure taken by the Trump administration in this domain creates a precedent. A precedent that the next administration — regardless of its political color — will be able to invoke. If Trump can use habeas corpus as a variable in his immigration policy, who prevents a future Democratic administration from invoking the same precedent for different reasons? Constitutional principles only function if they are defended universally. The moment we begin applying them conditionally — only for people we like, only in situations we approve — is the moment they cease to be principles.

Toward a conclusion: what this memo should trigger

A call for democratic vigilance

Will Scharf's April 29, 2026 memo should trigger three things in a functioning democracy. First, a congressional investigation into the extent of discussions about suspending habeas corpus within the Trump administration — not to find culprits, but to create a public record of what was discussed and why. Second, a serious legislative debate about the limits of executive powers on immigration. Third, a public commitment from the Supreme Court to reaffirm habeas corpus protections even in the context of current immigration policy.

None of these three things seems likely to materialize in the political context of 2026. What should be a major constitutional alarm is being treated by many as just another news cycle item. This normalization may be the deepest danger: that we become so accustomed to the Trump administration's constitutional affronts that we stop seeing them as affronts.

Letter to American citizens

This open letter ends with a direct address to American citizens — particularly those who support Trump's aggressive immigration policies. I ask you to consider a single question: if tomorrow, for reasons you cannot foresee today, you found yourself facing unjust government detention, would you want the right to ask a judge to examine whether that detention is legal? That is habeas corpus. That is your right too. And once we accept suspending it for some, it becomes far easier to suspend it for all.

The consequences of mass arbitrary detention

ICE and the policy of unlimited detention

Alongside the habeas corpus discussions, ICE implemented a mandatory detention policy of unprecedented scope. Tens of thousands of people were arrested — some with criminal records, many without — and held for weeks or months. These detentions were taking place in facilities not designed for prolonged stays, in conditions that federal judges described as violating the Fourth Amendment's prohibition on unreasonable detention.

The mandatory detention policy is the context for understanding Miller's proposal. Without habeas corpus, all these detentions could only be challenged through ICE's own administrative channels — an agency that, as we saw in the Omar case, ignored two judicial release orders. Without judicial recourse, there would be no mechanism of external oversight.

Families held hostage by the system

Behind every person detained by ICE, there is a family. A spouse who does not know where their partner is. Children waiting for a parent to come home. Parents watching their child taken away by federal agents. These families — millions of them in 2026 America — live in permanent insecurity. This insecurity is partly the stated objective of Trump's policy: create an atmosphere of fear that discourages unauthorized immigration. But this atmosphere of fear does not distinguish between those with complicated immigration files and legal residents like Akram Omar. It touches everyone.

Conclusion: Habeas corpus is the floor, not the ceiling

This right is non-negotiable

Habeas corpus is not a luxury protection. It is not a bureaucratic obstacle invented by liberal judges to block law enforcement. It is the minimum threshold below which no democratic state should descend: the right of every individual to ask a court to justify their detention. The Magna Carta. Eight centuries. Four suspensions in times of war or armed rebellion in American history. That is the floor.

Had the Trump administration suspended habeas corpus for immigrants, it would not have raised the bar for the protection of Americans. It would have lowered it for everyone. Because in the logic of precedents, what can be done for some can always be extended to others. This is why this memo — this internal document that says "it is insane" — is so important. It is proof that there were, even inside this administration, people who understood why certain lines must not be crossed.

The letter Scharf did not have to write but wrote anyway

Will Scharf may not have needed to draft such a complete and honest memo on the legal and historical limits of suspending habeas corpus. He could simply have said: here is how to do it. He chose to say: here is why it does not hold. This choice — in an administration where political loyalty often overrides institutional honesty — deserves to be recognized. It is not heroism. It is minimum professionalism. But in the context of 2026, minimum professionalism sometimes looks like resistance.

Conclusion: What this letter demands

Accountability — for history

This open letter does not have the power to change the Trump administration's policy. It does not have the power to convene a Congress that would seriously debate the constitutional limits of immigration policy. What it can do is enter the historical record. To say, for the archives, that in the America of June 2026, the Trump administration seriously discussed suspending one of the fundamental rights of Western civilization to accelerate deportations — and that this was not acceptable.

The America that resists and the America that capitulates

There is an America that resists: the judge who ordered Omar's release twice. The attorney who filed the emergency motion. The journalists who obtained the memo. There is an America that capitulates: the ICE that ignores court orders, the Miller who talks about constitutional suspension, the Noem who cannot define habeas corpus. These two Americas coexist. And the outcome depends on which one prevails in the months and years ahead.

Conclusion: The last line of defense

Law as a limit on power

Will Scharf's April 29, 2026 memo is a document that says, in essence: there are limits. Not by ideological choice. By constitutional and historical necessity. Those limits — habeas corpus, the separation of powers, judicial independence — are not obstacles to good governance. They are the conditions of possibility for governance that remains legitimate. An administration that suspends these rights no longer governs according to law. It governs according to its own will. And that, in a democracy, is precisely what all of these institutions were built to prevent.

What history will remember

History will record that in the America of 2026, under the presidency of Donald Trump, the option of suspending habeas corpus to accelerate deportations was seriously discussed. It will record that White House aides called it insane. It will record that Miller mentioned it publicly anyway. And it will record that the American public — informed by investigative journalists and lawyers who were resisting — knew what was happening. What history cannot yet know is the sequel. That is in the hands of the institutions — and the citizens who decide whether those institutions are worth defending.

Conclusion: What the habeas corpus debate means for all of us

A right that belongs to everyone, not just immigrants

The Trump administration framed its habeas corpus discussions as a matter of immigration policy — a question of how to deal with people the administration considered unwanted. But habeas corpus is not an immigration right. It is a human right, codified in law. It belongs equally to the immigrant, the citizen, the tourist, the student, and the president himself. A precedent that allows its suspension for immigrants does not stop at the immigration file. It creates a constitutional opening that future governments — of any party — can walk through.

The historical weight of what was considered

Magna Carta. Eight centuries. Lincoln's Civil War. Hawaii after Pearl Harbor. These are the predecessors to what Miller was proposing for immigration enforcement in 2026. That lineage tells you everything about the scale of what was under consideration. The Scharf memo exists precisely because someone in the administration understood this historical weight — and put it in writing. That document is now part of the record. It cannot be unsaid. And the conversation it documented, however uncomfortable, deserves to remain visible in the historical ledger of this administration's exercise of power.

By Maxime Marquette, columnist

Columnist's transparency note

Sources and method

This open letter is based on the reporting of Inkl/New York Times dated June 15, 2026 on the Scharf memo, as well as supplementary sources published on the Trump administration, immigration policy, and American habeas corpus jurisprudence. The columnist does not have access to the full text of the Scharf memo — information is drawn from Haberman and Swan's reporting. Quotes from Miller, Trump, and Noem are published in verified news outlets. The cited jurisprudence — Boumediene v. Bush 2008, Ex parte Milligan 1866, Ex parte Merryman 1861 — is publicly available American law.

Limits and uncertainties

The columnist does not know whether the Trump administration genuinely intended to implement the suspension of habeas corpus or whether these discussions remained theoretical. The context in which Scharf drafted his memo — and how the final decision was made not to proceed — is not fully known publicly. The article acknowledges these limits and clearly distinguishes between documented facts and interpretive analysis.

Sources

Primary sources

Inkl/New York Times — Trump team wanted to suspend Constitutional right to deport more immigrants, memo reveals — June 15, 2026

Newsmax — Political context of the Trump administration — January 2026

Secondary sources

The Lens NOLA — ICE and immigration court orders — June 2026

New York Times — Third-country deportations under Trump — June 2026

Democracy Docket — Federal judicial context, Trump administration — 2026

Foreign Policy — Immigration policy and fundamental rights — 2026