The Trump administration is considering suspending the writ of habeas corpus, the legal right to challenge one’s detention, Stephen Miller, a top White House adviser, said on Friday.
“The constitution is clear, and that of course is the supreme law of the land, that the privilege of the writ of habeas corpus could be suspended in time of invasion. So that’s an option we’re actively looking at. A lot of it depends on whether the courts do the right thing or not,” Miller said to a group of reporters at the White House.
The suspension clause of the US constitution says: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The writ of habeas corpus has only been suspended four times in US history, most notably by Abraham Lincoln during the civil war. It was also suspended during efforts to fight the Ku Klux Klan in the 19th century in South Carolina, in the Philippines in 1905 and in Hawaii after Pearl Harbor.
Suspending habeas corpus would be an extremely aggressive move that would dramatically escalate the Trump administration’s efforts to attack the rule of law in American courts as it tries to deport people without giving them a chance to challenge the basis of their removals.
Miller, long known for his far-right positions on immigration, has sought to deploy a maximalist approach in carrying out mass deportations. The US government has already produced little evidence to justify immigrant deportations and in some cases has sought to remove students in the United States legally for expressing their views, specifically support for Palestinians.
Many of the immigrants that the Trump administration has moved aggressively to deport – including Mahmoud Khalil and Rümeysa Öztürk – have filed habeas petitions challenging efforts to deport them.
The administration has already attempted to deport people without due process by invoking the Alien Enemies Act (AEA), an 18th-century law that allows the president to do so in a time of war.
The Trump administration has justified its use of wartime authorities granted by the law by arguing that the US is under “invasion” by Tren de Aragua, a Venezuelan gang. However, federal judges appointed by six different presidents, including Trump, have rejected the administration’s claim that the United States is under invasion and blocked the removals.
As Judge Karen Henderson, a Reagan and George W Bush appointee, wrote on 26 March, in concurrence with Judge Patricia Millett, an Obama appointee, “the government claims that the term ‘invasion’ as used in the AEA encompasses ‘the arrival somewhere of people or things who are not wanted there’. The text and its original meaning say otherwise. The theme that rings true is that an invasion is a military affair, not one of migration.”
Judge Stephanie Gallagher, a Trump appointee, echoed that rejection of the government’s claim to be facing an invasion, writing on 23 April that the administration’s lawyers “have provided no evidence, or even any specific allegations”, as to how anyone who entered the country as an unaccompanied minor and later sought asylum “poses a threat to public safety”.
As Steve Vladeck, a Georgetown law professor, wrote in his newsletter on Friday: “Miller is being slippery about the actual text of the constitution.” The suspension clause “does not say habeas can be suspended during any invasion”, Vladeck noted, and it actually says that the right “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”.
“[T]he whole point is that the default is for judicial review except when there is a specific national security emergency in which judicial review could itself exacerbate the emergency,” Vladeck argued. “The emergency itself isn’t enough. Releasing someone like Rümeysa Öztürk from immigration detention poses no threat to public safety.”
But while courts have tried to stop the administration’s efforts to unlawfully deport people, Trump has attacked judges for ruling against him and in some cases openly defied the courts.
