‘Alarm’ at White House After Vance and Miller Pushed Insurrection Act, Habeas Corpus Suspension During Anti-ICE Protests

A Monday report in The New York Times revealed what it described as the "alarm" felt by some White House lawyers at proposals made earlier this year by Vice President JD Vance and Trump adviser Stephen Miller as the administration was forced to contend with widespread anger over its anti-immigration agenda.

Among other things, the Times reported that Vance pushed for President Donald Trump to invoke the Insurrection Act, which would allow for the US military to be deployed on American streets, in an effort to shut down mass protests in Minnesota against federal immigration enforcement operations in the state.

A few days after US Immigration and Customs Enforcement (ICE) officers fatally shot demonstrator Alex Pretti in the streets of Minneapolis, the Times reported that Vance—who had also elevated a baseless claim by Miller that Pretti had been a "would-be assassin"—said invoking the Insurrection Act was necessary "to crush the unrest in Minnesota."

Vance also believed invoking the law would send a “message” that “paid agitators could not get away with disrupting ICE operations”—even though, as the Times noted, there is no evidence that Pretti; demonstrator Renee Good, who was also killed by federal agents; or any other organizers in Minnesota or elsewhere received any money in exchange for protesting.

However, right-wing attorney Will Scharf quickly shot down Vance's suggestion, noting that the Insurrection Act is an instrument aimed at putting down armed rebellions rather than groups of citizens blowing whistles at ICE officers.

Former White House Deputy Chief of Staff James Blair then made the political case against invoking the Insurrection Act.

"The scenes of federal agents in Minnesota already looked chaotic, he said, and the public was recoiling," reported the Times. "He put three questions to the room: What does the Insurrection Act give us that we don’t already have? What changes on the ground would be worth the heat? What else could they win that would justify the public relations cost?"

"The room was quiet," the Times added. "Nobody had a good answer."

The Times report also revealed that Trump adviser Stephen Miller, Trump's homeland security adviser and deputy chief of staff, repeatedly pushed the president to suspend the writ of habeas corpus for undocumented immigrants, which would give the administration the power to carry out mass deportations without being subjected to judicial oversight.

As in the case of Vance's proposal, Scharf pushed back against Miller's suggestion, noting that courts have long held that habeas corpus cannot be suspended unilaterally by the president and must be done by an act of Congress.

"Even where Congress has explicitly suspended habeas corpus rights," Scharf wrote in a legal memo obtained by the Times, "the Supreme Court has held that some alternative process must be provided to defendants, with procedural safeguards akin to a habeas corpus action."

Aaron Reichlin-Melnick, senior fellow at the American Immigration Council, said the Times' reporting showed Miller "would happily shred the Constitution into little pieces if he could," before hopefully noting that "even he wasn’t powerful enough to do it" in this instance.

University of Michigan Law School Professor Leah Litman argued that the Times report showed some in the administration were at least still somewhat conscious of public opinion when making decisions.

"In the story about the administration weighing suspending habeas corpus and invoking the Insurrection Act, what moved the needle against the Insurrection Act was concern about 'public relations,'" Litman wrote. "Public pushback, agitation, and outcry can work. Even now. Keep it up."