WASHINGTON (AP) — White House deputy chief of staff Stephen Miller has indicated that President Donald Trump is exploring ways to broaden the legal authority to deport migrants residing in the United States unlawfully. Miller mentioned that the administration is actively considering the suspension of habeas corpus, which grants individuals the right to challenge their detention by the government. This potential move would primarily target migrants as part of the administration’s intensified enforcement actions at the U.S.-Mexico border.
“The Constitution stipulates that the writ of habeas corpus can be suspended during times of invasion, as it is the supreme law of the land,” stated Miller during a press briefing outside the White House on Friday. “Therefore, this is an option we are actively exploring. Ultimately, the outcome may hinge on the actions of the courts.”
What is habeas corpus? Habeas corpus is a Latin term meaning “that you have the body.” It allows federal courts to summon a prisoner before an impartial judge to determine the legality of their imprisonment. Originating from English common law, habeas corpus was included in the Constitution to safeguard individuals against unlawful detention.
Has it been suspended before? Yes, habeas corpus has been suspended in the United States on four notable occasions, typically with the authorization of Congress. President Lincoln suspended it during the Civil War to detain suspected spies and Confederate sympathizers. President Grant enforced a suspension in parts of South Carolina under the Civil Rights Act of 1871 to combat violence during Reconstruction. Additionally, it was suspended in the Philippines in 1905 and in Hawaii post-Pearl Harbor bombing.
Can the Trump administration suspend it? The administration could attempt to do so. Miller has cited concerns of a migrant “invasion” as a possible justification for suspension. However, any move to suspend habeas corpus would likely face legal challenges questioning the existence of an invasion or imminent threats to public safety. Federal judges have previously scrutinized the administration’s efforts to expand deportation powers using extraordinary measures.
Trump contended in March that the United States was confronting an “invasion” of Venezuelan gang members, citing the Alien Enemies Act of 1798 to justify expedited deportations. The administration moved swiftly to deport alleged members of Tren de Aragua to a notorious prison in El Salvador, sparking legal battles in various federal courts across the country. Several courts, including those in New York, Colorado, Texas, and Pennsylvania, have blocked the administration’s use of the Alien Enemies Act, raising doubts about the purported invasion.
Given the skepticism of the courts, the suspension of habeas corpus seems increasingly challenging. Stephen Miller, a vocal critic of rulings against the administration, suggested that Article III courts, or the judiciary, may not have the authority to decide on immigration cases due to the Immigration Nationality Act passed by Congress in 1952, with subsequent amendments in 1996 and 2005. While this law could potentially steer cases to immigration courts under executive oversight, appeals may still face obstacles similar to those encountered with the Alien Enemies Act.
Although administrations have not attempted to suspend habeas corpus since Pearl Harbor, recent years have seen significant legal battles surrounding the issue. Following the 9/11 attacks, President George W. Bush did not suspend habeas corpus but sent detainees to Guantanamo Bay, resulting in legal challenges alleging constitutional violations. In 2008, the Supreme Court ruled that Guantanamo detainees possessed the right to habeas corpus, enabling them to contest their detention before a judge and leading to the release of some individuals from U.S. custody.
