The Trump administration is considering suspending the constitutional right of habeas corpus in order to expedite the deporting of unauthorized immigrants. White House Deputy Chief of Staff Stephen Miller said the administration is considering this legal path as a means of expanding its authority over immigration enforcement.
“The Constitution is very clear, and that of course is the ultimate law of the land, that the privilege of the writ of habeas corpus can be suspended during a time of invasion,” Miller said on Friday outside the White House.
“So, I would say that’s an option we’re very much considering,” he continued. “Look, a lot of it has to do with whether the courts are going to do the right thing or not.” The proposal is one element in a larger effort at the U.S.-Mexico border, with President Donald Trump pushing policies that seek to deter illegal immigration.
Understanding Habeas Corpus
Habeas corpus, from the Latin for “that you have the body,” is an essential legal safeguard that enables detainees to be brought before a judge to protest the legality of their imprisonment. Having its roots in English common law, it was formalized in the U.S. Constitution to guarantee that the government cannot imprison someone illegally.
The Suspension Clause of Article I, Section 9 of the Constitution states that the writ can be suspended only “unless when, in cases of rebellion or invasion, the public safety may require it.”
Since American history began, this right has been suspended only under dire circumstances. It was invoked by President Abraham Lincoln during the Civil War, at first without authorization from Congress. Later in 1863, it was approved by Congress. President Ulysses S. Grant invoked it under the Ku Klux Klan Act of 1871 to quell violent opposition in the South.
Other significant examples include its suspension during the Philippines in 1905 due to perceived insurrection threats and in Hawaii after the bombing of Pearl Harbor in 1941.
Judicial scholars such as Amy Coney Barrett have contended that although the Constitution does not describe which branch gets to suspend the writ of habeas corpus, most concur that only Congress can approve such a suspension.
Legal and Political Hurdles Ahead
Although the Trump administration might try to suspend habeas corpus, legal analysts think the way is filled with constitutional hurdles. Miller called the present migrant surge an “invasion,” language that fits the circumstances under which habeas corpus can be suspended.
Trump has made such claims before, using terms like an “invasion” of members of Venezuelan gangs and the Alien Enemies Act of 1798. His government attempted to deport suspected members of the Tren de Aragua gang to El Salvador pursuant to this statute, with numerous lawsuits resulting.
Federal courts in several states—New York, Colorado, Texas, and Pennsylvania—have prevented the deportations, challenging both the law’s rationale and whether there is a real invasion.
Was Court Bypass a Possibility?
Miller alluded to circumvention of the judiciary through invocation of the Immigration and Nationality Act, which according to him circumscribes the judicial branch of authority in such immigration cases.
“Congress enacted a series of legislation commonly referred to as the Immigration Nationality Act, which deprived Article III courts, that’s the judicial branch, of jurisdiction to decide immigration cases,” he declared Friday.
Although this law, passed in 1952 and later amended, does entrust a lot of immigration decisions to executive-operated immigration courts, the majority of legal appeals remain within the purview of federal judges.
Historical Comparisons and Legal Precedents
No administration in the United States has suspended habeas corpus since World War II. While President George W. Bush didn’t officially suspend the writ after 9/11, his utilization of Guantanamo Bay detention centers resulted in significant court battles. In 2008, the U.S. Supreme Court held that Guantanamo detainees were entitled to habeas corpus, enabling them to challenge their detention.
That ruling established a legal precedent for ongoing cases, making it difficult for the Trump administration to curtail constitutional rights without strong legal justification.
