A statement made by Stephen Miller, the deputy chief of staff at the White House, on Friday stated that the administration of President Trump is “actively looking at” suspending habeas corpus, which is the right of an individual to challenge their detention in court.
The suspension of habeas corpus would be a severe escalation of the immigration policy of President Donald Trump’s administration, as it would significantly restrict a right that is established in the Constitution. If this were to be carried out, it would be a radical addition to the policy.
“First, you know, President Trump has talked about potentially suspending habeas corpus to take care of the illegal immigration problem. When could we see that happen in the future?” a reporter asked Miller as he spoke outside the White House.
“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 time of invasion,” Miller answered.
“So, it’s an option we’re actively looking at,” he continued.
In Article I of the Constitution, it is stated that writs of habeas corpus “shall not be suspended, unless in cases of rebellion or invasion the public safety may require it.” However, the Constitution does provide for the suspension of habeas corpus in exceptional circumstances.
According to the National Constitution Center, the United States of America has suspended the right to habeas corpus on four separate occasions in the past: during the Civil War, during Reconstruction in South Carolina, in the Philippines during an uprising in 1905, and in Hawaii in 1941, following the bombing of Pearl Harbor by Japan during World War II.
Miller provided a justification for the possibility of suspending habeas corpus by claiming that the United States is currently confronted with a threat to its national security posed by undocumented migrants who are “invading” the United States.
In March, President Trump invoked the Alien Enemies Act, which is a legislation that would allow the quick deportation of noncitizens with little to no due process, in order to remove individuals who were suspected of being members of the Venezuelan gang Tren de Aragua. This argument was identical to the one that was used back in March.
However, two different federal judges, one of whom was selected by Trump, expressed their opinion that the application of the Alien Enemies Act was improper. This was due to the fact that the Trump administration did not provide evidence that the United States is being invaded by Tren de Aragua.
It was Miller who stated that the decision that the administration will make would be determined by whether or not the courts “do the right thing.”
However, legal experts have observed that the matter is not as straightforward as Miller indicates, and that a president is not permitted to suspend habeas corpus without first receiving authority from Congress.
“Miller also doesn’t deign to mention that the near-universal consensus is 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 writes in his Substack blog.
“He’s 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,” he writes.
The legendary suspension of the writ of habeas corpus by President Abraham Lincoln at the beginning of the Civil War is not without its significance.
Nevertheless, the Chief Justice at the time, Roger Taney, ruled that the action was invalid. He pointed out that the section in question may be found in Article I of the Constitution, which lists the powers of Congress rather than those of the president.
As the war stretched on, Lincoln eventually inquired about the possibility of receiving consent from Congress for the suspension.
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