The White House is privately debating whether to suspend the writ of habeas corpus, a bedrock legal protection that lets individuals challenge unlawful detention in court. Two sources tell CNN that President Donald Trump has personally joined these discussions. On Friday, top aide Stephen Miller confirmed the administration is “actively looking at” suspending habeas corpus, depending on “whether the courts do the right thing.”
Miller’s remarks signal a serious White House effort to curb federal judges’ power over immigration. The practice would halt judicial review of deportation and immigration rulings. Experts say such a move clashes with the habeas corpus meaning enshrined in the Constitution and would trigger immediate legal challenges.
Trump’s “One Way” to Combat Injunctions
Though Trump hasn’t publicly named habeas corpus, he hinted at it on April 30. He promised “one way that’s been used by three very highly respected presidents” to overcome nationwide injunctions on deportation. Trump told reporters, “Hopefully we don’t have to go that route, but there are ways of mitigating it.”
Legal analysts say Trump referred to suspending habeas corpus. Under Article I, Section 9 of the habeas corpus constitution clause, Congress may suspend the writ “in Cases of Rebellion or Invasion” when public safety demands it. Critics note no rebellion or foreign invasion exists.
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Miller’s Push and Constitutional Limits
Miller, a veteran immigration hardliner, has long blamed judges for thwarting policy. He told reporters the administration would weaken courts’ role in deportation cases if judges failed to “do the right thing.”
- Expert Rebuttal: Former federal prosecutor Elie Honig calls Miller’s plan “wrong.” He notes Congress has never authorized deportations without court involvement.
- Historical Context: Professor Ilya Somin observes suspensions only occurred during Civil War or World War I. State efforts in the 1990s to suspend habeas corpus over immigration were struck down by courts.
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Parallel Tactics: Alien Enemies Act and Enemy Combatants
The administration has also invoked the 1798 Alien Enemies Act, aiming to deport migrants without due process. Judges have unanimously rejected this, ruling the U.S. is not under invasion by a hostile power. Officials are exploring labeling certain cartel members “enemy combatants” to limit their legal recourse.
Suspending habeas corpus would take these efforts further. Migrants could be detained indefinitely with no court challenges. Constitutional scholars warn such a policy would upend centuries of legal tradition.
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Judiciary Pushback and Roberts’ Warning
Amid growing tension, Chief Justice John Roberts emphasized judicial independence at a Buffalo event. He reminded Americans that the courts are a “coequal branch” empowered to check executive and legislative excesses. His remarks underscore the judiciary’s vital role in protecting individual rights.
Trump’s personal attacks on judges and Miller’s “judicial coup” rhetoric have heightened friction between branches. Suspending habeas corpus would represent an unprecedented leap in that battle.
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What’s Next: A Contentious Confirmation and Congressional Role
It remains unclear if the administration will draft executive orders or seek congressional approval. Although the Constitution doesn’t explicitly demand Congress sign off, legal precedent and Justice Antonin Scalia’s writings suggest legislative authorization is necessary for such a sweeping measure.
Any move to suspend habeas corpus would face immediate blockades in federal courts. Immigration lawyers and civil-rights groups stand poised to challenge the policy, arguing it violates fundamental due-process guarantees.
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