Hey folks, Preet here. Joyce Vance is out this week, so joining me today is my friend Rachel Barco. Rachel is a professor at NYU Law School, and she previously served on the U.S. Sentencing Commission. First, we reflect on the legacy of Supreme Court Justice David Souter, who passed away last week at age 85. Then we discuss some major legal developments. Trump advisor Stephen Miller said the administration is considering suspending the right to habeas corpus to expedite deportations.

And in a surprising turn, the Justice Department has asked a federal judge to dismiss a lawsuit that seeks to restrict access to the abortion pill, Mifepristone. If you're a Cafe Insider, head to the Insider feed or click the link in the show notes of this episode to hear the full podcast. Stay tuned, listeners. Stick around for an excerpt from our conversation. To hear the full discussion, become a member by heading to cafe.com slash insider. Now onto the show.

So habeas corpus is a complicated Latin phrase. It essentially is the right recognized long before the United States became a nation, correct? Correct. Of the ability to challenge your imprisonment in a court. I'm trying to think of something more fundamental than the right to habeas corpus or moral longstanding. You would know, and maybe you can answer that in a second. And Stephen Miller, I don't know if he's the deputy chief of staff or what his exact title is,

But he's sort of a man about town. And he says the following a couple of days ago. Well, the Constitution is clear. And that, of course, is the supreme law of the land that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So that's an option we're actively looking at.

Look, a lot of it depends on whether the courts do the right thing or not. At the end of the day, Congress passed a body of law known as the Immigration Nationality Act, which stripped Article III courts of the judicial branch of jurisdiction over immigration cases. So he's upset and the Trump administration is upset over the ways in which judges, including judges appointed by Trump and other Republican presidents,

are deciding matters relating to deportations that the Trump administration has undertaken. And he's essentially saying, I mean, it sounds like a threat to me because it depends on whether the courts do the right thing or not, and the right thing up to Stephen Miller and Donald Trump. They're looking at the privilege of the writ of habeas corpus. There's a lot going on in all those words, which I believe were not accidentally chosen by

You want to say something as a professor first about the importance of habeas corpus? Yeah. So, you know, it's known as the great rift. So, you know, we should make very clear that this is a cornerstone to any research

jurisdiction that believes in liberty. And the idea behind it is, you know, you can't have your liberty stripped from you by the executive without a court making sure that it's okay, you know, that you get to appear before a court to, you know, make sure the claims that the executive is saying are true, are in fact true. And, you know, it really is the most fundamental defense option

for liberty. And the idea that you would think that it could just kind of willy-nilly be turned on and off like a light switch, which is how I read that quote, is outrageous. And it should really shock the conscience of anyone who believes in our Constitution because it is an absolute pillar, a fundamental pillar of liberty protection that you really can't say that you have

I think, you know, a valid democracy that adheres to constitutional protections of liberty. If you don't have habeas corpus, if you don't have the ability to go before a court and make sure that your detention is lawful, because otherwise what you have is you just have an executive branch that can do whatever it wants. You have tyranny. You know, it is the line between tyranny and democracy. So it is absolutely critical. And it's so critical

that it was part of our Constitution even before the Bill of Rights was added. You know, the idea that, you know, that the Great Red, you know, could only be suspended under super limited extraordinary circumstances. And, you know, the great consensus is only by Congress. You know, it's not something that could be unilaterally done by a president. So the idea that he's just going to kind of be like, oh,

Oh, you know, well, I'm going to throw out this thought bubble. We're actively considering it. We have a working group. Right, would be kind of like, you know, well, we have the Constitution over a flame right now and we're actively considering incinerating it. But we'll just see what the courts do to decide whether or not we're going to burn it and stop observing it. I mean, it's a little bit like that. It's a little bit like saying, you know, well, we like holding elections, but, you know, it's...

If things don't turn out the way we want them to, you know, we're looking into the possibility, if not, of suspending elections. You know, it's something that's that important to thinking about how our structure operates. Because if you don't have that kind of look by an independent judiciary, really all bets are off. Then it literally means that the executive branch, the presidency, can turn into a complete and total tyrannical fascist regime.

Yeah, there's a version of this that people do when these kinds of threats are made. It's like, you know, it's a great writ. You're ashamed something happened to it. So it's a really great writ. It would really be a shame. Can I ask you maybe a, I don't know if it's a frivolous question or not. When we talk about the great writ, we think of it as a right. Constitution in Article 1, Section 9, Clause 2 refers to the privilege of the writ of habeas corpus. Is there any

Is there anything important about the fact that the Constitution calls it a privilege and not a right? No, no. I mean, I think that... It's just old talk, right? It doesn't demean its status in terms of what you're entitled to. And we have lots of Supreme Court case law making clear how fundamental it is. And that language is all very much in a familiar rights-based language. So, you know, it can... That same constitutional provision does provide an extraordinary circumstance when it could be suspended.

but it's extraordinarily limited. And for good reason, because you really can't do away with that and still make sure that the people who live in your country are sufficiently protected. Yeah, I mean, the reason I mentioned it is that I don't know that everyone is carrying around their pocket constitution or is taking a look at the pocket constitution and is not reading all the cases that you mentioned to talk about the fundamental nature of the right of habeas corpus. And I can't help but think

When Stephen Miller specifically refers to the privilege of the writ of habeas corpus, he's kind of doing it intentionally to suggest it's something milder and more fickle than it actually is. Am I wrong about that?

Yeah, you know, you're probably right. I think he's very devious that way. And they use a lot of that language when they talk about things. You know, it's a privilege to be in the United States. Yeah, it's a privilege. It's not a right. You know, it's a privilege for anyone who is an immigrant to be here. And therefore, you know, if you publish an op-ed, they don't like, you know, you lose the privilege. They very much have that kind of framing for a lot of the things that they want to do. So I'm sure you're right that that's a deliberate word choice on his part. But legally speaking, that's meaningless.

All right, so let's read the full clause. The privilege of the writ of habeas corpus shall not be suspended. But then it goes on. There's an exception, Rachel. Unless when in cases of rebellion or invasion, the public safety may require it. It seems like a big exception and a lot. So put rebellion aside for a moment, right? Because the great writ was suspended during the Civil War. And we'll talk about why Congress wasn't involved in that suspension or those suspensions.

But a lot of this relies on invasion. In a separate case, the Abrego-Garcia case, which listeners will be familiar with, there's a lot of discussion about what an invasion means or a predatory incursion means and whether or not even the courts are in a position to decide that because if it's a matter of national security, then only the president decides. And J.D. Vance, none other than J.D. Vance, espoused that view. So before we get into the examples of when this has happened before and with what consequence and the rarity of it,

Can you just address the question of what is an invasion and who decides it for purposes of suspending the writ?

Yeah, I mean, it's important to emphasize that I don't think a court will feel that it's their job to say whether or not there's an invasion for purposes of this constitutional provision. And that may be different than when we're talking about statutory language that may also talk about an invasion. But for purposes of this clause of the Constitution, you know, I think there's a fair amount of

scholarship and a sense that the idea of what counts as a rebellion or an invasion under the language of that clause would be something that's known as a political question, meaning that it's not really one for the courts to say, well, you know, we don't think that invasion quite crosses the line. You know, I think that's one where they're... Yeah, but what if, I'm sorry, what if it's not even colorable? And the example I keep using with the Alien Enemies Act is an invasion of imports of, you know, low-priced goods from Japan.

And colloquially, the president says that's an invasion. And then he gets to justify deportation of Japanese back to Japan. Are you saying that even in a case where some really far-fetched outlandish argument was being made about the existence of an invasion? And by the way, that could be now because I don't think we've been invaded by anyone. But if they're considering this, the Supreme Court would really, courts would really stand aside if the current situation was

were to be classified as an invasion, even though it makes no sense? I don't think they would defer to an executive pronouncement that it was an invasion. So it kind of loops back to the part that you wanted to put aside, but I'm going to bring it back in again, which is that... Thanks for listening. To hear our full conversation, become a member by heading to cafe.com slash insider.

Membership gives you exclusive access to in-depth weekly episodes of the Insider Podcast and bonus content from Stay Tuned. Don't miss out. Now more than ever, it's important to stay tuned. Join us at cafe.com slash insider today and help support our work.

See you next time.

See how you can turn your team into a content machine with Adobe Express, the quick and easy app to create on-brand content. Learn more at adobe.com slash express slash business.