Stephen Miller, a senior adviser to the president, stated on May 9 that the Trump administration is considering suspending the constitutional right to challenge detention in court. Miller, the White House deputy chief of staff, mentioned that the Constitution allows for the suspension of the writ of habeas corpus in times of invasion. Habeas corpus, which means “you have the body” in Latin, is a legal remedy to determine the legality of someone’s detention by the government. It is commonly used in federal courts to challenge imprisonment, especially by those questioning the convictions leading to their sentence.
Recent cases have highlighted the issue of habeas corpus under the Trump administration, with individuals lacking legal status and international students facing detention for their advocacy work. For example, a federal judge in Vermont recently ordered the release of a Tufts University student detained for an op-ed, and another judge granted the release of a Columbia University student who was a pro-Palestinian activist.
Following Miller’s remarks, he suggested that the administration’s actions would depend on the courts’ decisions. He criticized the Immigration and Nationality Act for limiting the judicial branch’s authority over immigration cases, calling it “jurisdiction-stripping legislation.” Legal experts, such as Stephen Vladeck, have strongly criticized Miller’s comments as misleading and dangerous. Vladeck pointed out that only Congress, not the President, has the authority to suspend habeas corpus.
In summary, habeas corpus has been historically used to challenge unlawful detentions, and recent cases under the Trump administration have raised concerns about its suspension. The debate surrounding habeas corpus highlights the complex relationship between the branches of government and the protection of individual rights.
The Magna Carta was established in 1215. English common law, predating the founding of the United States, had set forth the principle of habeas corpus as a means to challenge imprisonment. The American framers included protections for habeas corpus in the Constitution, specifically under Article I which established the legislative branch. The Suspension Clause within the Constitution stipulates that the privileges of the Writ of Habeas Corpus shall not be suspended except in cases of rebellion or invasion where public safety necessitates it.
Federal statutes, beginning with the first Judiciary Act of 1789 in the inaugural Congress, empower courts to grant relief through habeas corpus for individuals in custody. Subsequent laws and judicial decisions have further upheld this fundamental right.
In a rally commemorating his 100th day in office at Macomb Community College in Warren, Michigan on April 29, 2025, U.S. President Donald Trump greeted U.S. White House Deputy Chief of Staff Stephen Miller.
Can habeas corpus be suspended unilaterally by the executive branch? The general consensus among experts is that it cannot. The authority to suspend habeas corpus lies with Congress as outlined in Article I.
According to Amy Coney Barrett, a Supreme Court justice appointed by Trump, and Neal Katyal, a former acting Solicitor General during the Obama administration, the Suspension Clause dictates that habeas corpus can only be suspended in “extraordinary circumstances” such as times of rebellion or invasion when public safety is at stake.
Cornell Law asserts that only Congress has the power to suspend the writ of habeas corpus, either through its own legislation or by expressly granting such authority to the executive branch. The executive branch does not possess the inherent authority to suspend the writ.
Has habeas corpus been suspended before? Barrett and Katyal’s analysis indicates that it has been suspended on four occasions in the past. President Abraham Lincoln controversially suspended habeas corpus nationally at the outset of the Civil War, though Congress later passed a law authorizing the suspension in March 1863. Congress has also authorized suspension in three other instances to allow the executive branch to take action.
These instances include the Ku Klux Klan’s activities in South Carolina during the Reconstruction era, an insurrection in the Philippines in 1905, and the suspension of habeas corpus in Hawaii following the Japanese attack on Pearl Harbor that drew the U.S. into World War II.
