The Trump administration is “actively” considering suspending habeas corpus as part of its efforts to combat illegal immigration, according to White House Deputy Chief of Staff for Policy Stephen Miller.
The announcement comes amidst a series of executive actions by President Donald Trump aimed at tightening border security and accelerating deportations.
Miller’s comments, made to reporters outside the White House on Friday, have sparked significant legal and political debate. “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 invasion,” Miller stated. “So it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”
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The administration’s consideration of this drastic measure follows recent legal challenges to its use of the Alien Enemies Act of 1798. This act allows for expedited deportations of foreign nationals during times of war or invasion.
The Supreme Court recently intervened, temporarily pausing the administration’s efforts to deport members of the Venezuelan prison gang Tren de Aragua (TdA), ruling that detainees must have the opportunity to challenge their deportations.
The legal battles have highlighted the tension between the administration’s aggressive immigration policies and the judiciary’s role in upholding due process. In March, U.S. District Judge James Boasberg issued an injunction against the deportation of TdA members, a decision later overturned by the Supreme Court.
However, Federal Judge Fernando Rodriguez Jr., a Trump appointee, subsequently blocked the administration’s use of the Alien Enemies Act, deeming it “unlawful.” He argued that the statute traditionally applies to “an organized, armed force entering the United States” for attack purposes, a standard he found was not met in the current cases.
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The White House touted the success of its immigration policies, citing a fact sheet released in April that showed significant reductions in border crossings, migrant encounters, and “gotaways.” However, the potential suspension of habeas corpus raises serious constitutional questions.
Habeas corpus, a legal principle that protects individuals from unlawful detention, is enshrined in the U.S. Constitution. Its suspension is rare, historically reserved for times of national crisis. Notably, President Abraham Lincoln authorized its suspension during the Civil War to safeguard critical transportation routes.
The Constitution permits the suspension of habeas corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Critics argue that the current situation does not meet this threshold, while supporters contend that the scale of illegal immigration constitutes an invasion that threatens public safety.
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