Stephen Miller Wants to Imprison His Enemies for an Imaginary War
The administration seeks to wage a real war against an imaginary foe, invoking a serious threat to American democracy
Stephen Miller spent the last week reminding us of the contempt this administration has for the Constitution. The White House’s Deputy Chief of Staff and resident white nationalist sought to deliberately misread the Constitution to on Monday argue for the elimination of due process and on Friday for the elimination of habeas corpus for noncitizens. Invoking the white nationalist replacement theory, Miller pointed to an imaginary invasion as justification for suspending the Constitution. Miller is far from alone, the administration is actively weaponizing the nativist lie about a nonexistent “invasion” to rapidly accelerate America towards an authoritarian state.
Miller’s Constitutional interpretation would be laughably inept if it wasn't an intentional nativist ploy to advance America towards authoritarianism. As Aaron Reichlin Melnick noted, even Antonin Scalia understood the basic principles Miller seeks to rewrite. "It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings," Scalia wrote in 1993. Scalia’s interpretation isn’t complicated; the 5th Amendment reads: “no person shall… be deprived of life, liberty, or property, without due process of law.” The White House via Miller, is arguing for either the revolutionary act of throwing out the Constitution or the more disturbing assertion that noncitizens are subhuman.
While Miller provides a nativist Constitutional misinterpretation of the lurch towards authoritarianism, his boss translates it to shrug-logic. For Trump, the mass deportation regime’s required suspension of the Constitution is a given. “The courts have all of the sudden, out of nowhere, they said, 'maybe you have to have trials. We're gonna have 5 million trials? It doesn't work,” said Trump with a shrug. The dehumanized scale of mass deportations renders the question of constitutionally protected rights as dismissible with a ‘oh well, what are you going to do’ shrug.
In case there was any doubt of Miller’s nationalist authoritarian preoccupation, on Friday, Miller said the administration was actively looking at suspending the writ of habeas corpus. (Check out Steve Vladeck’s analysis in One First for an excellent summary of Miller’s assertion here.) Miller dubiously asserted that "writ of habeas corpus can be suspended in a time of invasion,” asserting the white nationalist lie that immigration constitutes an invasion. A claim that the Trump appointed judges, his own National Intelligence Council, and basic common sense have rendered as horse shit. The white nationalist fiction that creates an imaginary army out of immigrants is essential to the administration’s designs on authoritarianism; they're not going to let factual reality get in the way of convenient conspiracy theory.
No one should mistake that their delusion limits the villains of the so-called “invasion” to a narrow cast of our undocumented neighbors. As I have noted before the administration isn’t just asserting the invasion lie in specific terms as when invoking the Alien and Enemies Act, which names President Nicholás Madero and Tren de Aragua as the invasion. Their list of “invaders” and “collaborators” is quickly expanding. In his rant about suspending habeas corpus Miller asserted that “the courts are not just at war with the executive branch, but the courts are at war, these radical rogue judges, with the legislative branch as well too.”
The language of “war” here is as intentional as it is with the use of “invasion.” Miller is actively seeking to assert an authoritarian posture that it can disregard the court and so too can the Republican majorities in Congress. Nor is this, of course, just the hypothetical ramblings of the nation’s highest-positioned white nationalist. The Trump administration has already arrested Judge Hannah C. Dugan for not actively turning her courtroom into an ICE trap. The administration issued a recent Executive Order to expand its threats against Democratic political opponents and arrested the Democratic Mayor of Newark on Friday.
DHS Secretary Noem also appeared on Hannity on Monday to use the invasion conspiracy theory to threaten the arrest and prosecution of judges and prosecuting Members of Congress for the act of informing immigrants of their rights under the law. “I think the Department of Justice should look into this situation,” said Noem to a question on whether or not informing immigrants of their rights constituted aiding and abetting. “We've seen not just those that serve in public office be willing to break the law but to facilitate the invasion.”
Earlier in that same interview, Secretary Noem more fully argued the replacement conspiracy theory. Noem made the absurd claim that former President Biden led a secret foreign military to invade the United States. “The Biden administration perverted every single government program there is in order to facilitate the invasion that happened over our border,” said Noem. This ridiculous conspiracy theory underwrites the official policy justification from the mass deportation regime and the authoritarian maneuvers to lock up judges and suspend due process.
To fight an imaginary war the administration is arguing that they get to suspend due process and habeas corpus for those they deem an “invader” while simultaneously naming their political opponents as “facilitating” and “abetting” the invasion that they hope to resign to the same fate.
The invasion is just as real as the lizard people living in the sewers, but the White House is gearing up and preparing its people to legitimately go to war because of this fiction. But this farce has real, immediate, and severe consequences for the lives of immigrants, American families, and our democracy. The consequences are profound and lasting when the United States tilts at windmills. If Trump, Miller, Noem, and the rest of the administration increasingly expand a real war on an imaginary enemy on its own soil, it's hard to overstate the lasting devastation that will bring.
The invasion is the narrative throughline for justifying their authoritarian maneuvers. We cannot afford to ignore it or dismiss it idly as clearly distorted hyperbole. They're balancing their entire nationalist authoritarian agenda and the mass deportation regime on top of this obvious lie. Attacking the invasion lie is necessary for protecting American democracy; it also has the benefit of turning our opponents’ perceived strength into a toxic liability.
We have to go on the attack to ridicule this bat-shit crazy conspiracy theory back to the political fringes. We need to popularly treat those in positions of power who expose this theory with the sort of derision we would if they were arguing the world was flat. At the same time, we must condemn them for the urgent threat their promotion of the invasion lie poses to public safety and American democracy. The invasion lie is ridiculous on face value, spread by unlikable kooks who happen to be in the most powerful positions in the country – if we attack the lie, we can expose them for what they are.