The Trump administration is “looking at” ways to suspend habeas corpus, a Constitutional right that allows a person to challenge government detention, as a way to assist President Donald Trump’s mass deportation agenda.
Stephen Miller, the White House deputy chief of staff who is largely credited with helping shape Trump’s immigration agenda, told reporters on Friday that the administration could circumvent habeas corpus under claims of an “invasion.”
The right of habeas corpus is directly given in Article I of the U.S. Constitution, allowing those detained by the government to challenge their detention by filing a petition with a court that has jurisdiction.
However, habeas corpus can be suspended “in cases of rebellion or invasion” when public safety may require it.
“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 an invasion, so that is an option we are actively looking at,” Miller said.
To invoke such, the administration would need to prove that the country was under threat of rebellion or invasion by a specific country or group of people – which it is not currently.
There have only been a handful of occasions in history when habeas corpus has been suspended, and not without intense debate. Former president Abraham Lincoln suspended it nationwide during the Civil War, though Congress later passed a statute permitting it.
But Miller believes the Trump administration could do just that.
“A lot of it depends on whether the courts do the right thing or not,” he told reporters.
Since taking office, the Trump administration has sought ways to expedite the removal of undocumented immigrants and bypass traditional due process. But judges have consistently intervened in challenges.
One way Trump has sought this is by invoking the Alien Enemies Act, declaring an invasion by the Venezuelan gang Tren de Aragua, in order to remove alleged gang members without traditional due process.
Multiple judges have blocked removals under the act, and while the Supreme Court allowed the administration to continue, they contended that immigrants are entitled to submit habeas corpus petitions.
Trump and members of his administration have expressed deep frustration over judges’ intervention, claiming they’ve gone “rogue” and defied the administration.
Miller continued, saying Congress stripped federal courts of their jurisdiction over immigration cases under the Immigration and Nationality Act.
The habeas corpus clause does not explicitly specify which branch of government has the authority to suspend it, but it has largely been interpreted to be Congress because it falls under Article I.
Courts, including the U.S. Supreme Court, have repeatedly affirmed that habeas corpus extends beyond U.S. citizens to immigrants or foreigners detained by the U.S. government.
On the surface, Miller's comments appeared to be an escalation of the administration's position compared to one week ago, when right-wing influencer Rogan O'Handley used his turn in the White House's "new media" briefing room seat to explicitly ask White House Press Secretary Karoline Leavitt if Trump would consider suspending the writ to "circumvent ... radical judges."
At the time, Leavitt said she had "not heard such discussions take place" while hedging by suggesting that Trump was "certainly open to all legal and constitutional remedies" to continue expelling people from the United States."
But privately, some administration officials concede that suspending the writ would be a "heavy lift" because it has only been done previously at time of war or in overseas territory controlled by the United States.
Andrew Feinberg contributed to this report
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