Trump officials suggest suspending habeas corpus

White House Deputy Chief of Staff Stephen Miller has indicated that the Trump administration is actively considering whether it can suspend habeas corpus, the right of an individual to challenge their detention in court.

When asked about suspending the writ of habeas corpus as part of its efforts to deport individuals from the United States, Miller told reporters Friday, “The Constitution is clear and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus could be suspended in time of invasion.”

“So that’s an option we’re actively looking at,” he added.

President Donald Trump and his administration have repeatedly asserted that the U.S. is facing an “invasion” requiring the deportation of undocumented migrants under the Alien Enemies Act, a law that would allow the deportation of noncitizens with little to no due process.

The administration, however, keeps losing that argument in court – including on Tuesday, when a federal judge said the White House has failed to prove the existence of an “invasion” or another conflict that would justify invoking the Alien Enemies Act to deport Venezuelan migrants.

The Constitution does not allow the suspension of habeas corpus solely because an “invasion” is declared by the executive branch. The document states in Article I that it can be suspended only “in Cases of Rebellion or Invasion (when) the public Safety may require it.”

That right, which allows an individual to petition their detention in court, also extends to noncitizens held within the United States. Several legal efforts challenging Trump’s deportation efforts are based on habeas petitions.

Trump and members of his administration have repeatedly vilified federal judges over what they see as unfair rulings against their expanded use of executive authority, calling for the impeachment of judges who have ruled against them.

On Friday, Miller again put the onus on the independent judicial branch, suggesting that whether the administration will act to suspend habeas corpus “depends on whether the courts do the right thing or not.”

There’s “near-universal” legal consensus, however, that only Congress can suspend habeas corpus, “and that unilateral suspensions by the President are per se unconstitutional,” Georgetown University Law Center professor Steve Vladeck pointed out in his Substack newsletter.

Miller, Vladeck added, is “suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose. That’s not, and has never been, a viable argument for suspending habeas corpus.”

According to the National Constitution Center, a nonprofit focused on constitutional education, habeas corpus has been suspended four times since the Constitution was ratified. Those suspensions took place throughout the country during the Civil War, in several South Carolina counties overrun by the Ku Klux Klan during Reconstruction, in two provinces of the Philippines during a 1905 insurrection, and in Hawaii after the bombing of Pearl Harbor.

During the Civil War, Chief Justice Roger Taney deemed President Abraham Lincoln’s suspension of habeas corpus unlawful. Taney stated that the Constitution intended for Congress, not the president, to have the power to suspend it. Lincoln later received approval from Congress to suspend the writ of habeas corpus for the duration of the war when “the public safety may require it.”

Miller’s comments came the same day Trump issued a proclamation that ordered the Department of Homeland Security to increase forces by 20,000 officers within 60 days in an effort to remove undocumented immigrants.

The proclamation says that the significant expansion will be achieved “by deputizing and contracting with state and local law enforcement officers, former federal officers, officers and personnel within other federal agencies, and other individuals.”

Trump has remained adamant about his effort to ship undocumented immigrants out of the country and has said that it is inconceivable that millions of cases could be heard in court, insisting that he needs the power to quickly remove people he says are murderers and drug dealers.

When asked during an interview on NBC News’s “Meet the Press” last weekend whether he believes that he needs to uphold the Constitution during his presidency – a central tenet of the oath of office – Trump responded, “I don’t know.”

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Jeremy Roebuck and Matt Viser contributed to this report.