Stephen Miller, a top aide to the president and the White House deputy chief of staff, told reporters outside the White House Friday that the Trump Administration is considering suspending the rights of immigrants facing deportation to challenge their own detention.

Speaking to reporters, Miller said the Constitution is clear on the matter, saying the right to challenge one’s own detention could be suspended in times of invasion.

While the Constitution does make an exception to the right to habeas corpus in times of rebellion or invasion, the notion immigration is the same as an invasion is completely and utterly ridiculous.

The Framers of the Constitution were themselves immigrants. The delegates that ratified the Constitution were also immigrants. The people who paid taxes when the Constitution was ratified were, yes, immigrants too. This entire nation was built by immigrants.

The right to challenge one’s own detention is so firmly ingrained in the jurisprudence of this country because the Framers recognized the dangers of a legal system in the hands of an authoritarian regime. It is therefore entirely silly to suggest the Framers intended to classify their own immigration as an invasion, and thus, subjecting themselves to the possibility of indefinite detention.

This is an intentionalist approach to constitutional interpretation, but even if we were to take a strict textualist approach, Miller would still be wrong. Even from a textualist perspective, it would still not be clear, as Miller suggests, whether the Constitution would allow Congress to suspend the right to habeas corpus and hold immigrant detainees without challenge.

The constitutional issue with taking a textualist approach here is the lack of specificity of what constitutes an invasion. Determining what constitutes an invasion is antithetical to the textualist approach because it would require the subjective interpretation associated with intentionalism.

Going back to the intentionalist approach, it seems clear, at least to me, that the Framers intended to address, specifically, invasions by foreign military forces under the direction of a foreign sovereign. It does not seem at all evident the Framers intended to penalize immigrants, especially when they themselves were immigrants.

While it would not make sense to jeopardize their own freedom, and the freedom of immigrants willing to help build their new nation, it does make sense, especially in the colonial era, that the Framers would be wary of foreign spies and saboteurs, not civilians farmers looking to immigrate.

Though spies and saboteurs could pose as civilian immigrants, a blanket restriction on all immigrants is outside the scope of executive and legislative authority under the Constitution. The proper remedy here, both for holding legitimate detainees and freeing the wrongly accused, is through the judicial system where the burden of proof falls on the detainee.

Further, I argue even spies and saboteurs require judicial remedies, not because they deserve them, but because we protect the innocent and wrongly accused by affording the perceived guilty the same rights and privileges as anybody else.