The Trump administration is “actively looking at” suspending the writ of habeas corpus for migrants as part of its intensified deportation efforts, according to recent statements from a senior White House official.

Stephen Miller, Deputy Chief of Staff for Policy at the White House, told reporters on May 9 that the administration is considering suspending habeas corpus, which would prevent migrants from challenging their detention in court prior to deportation.

“The Constitution is clear, and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in time of invasion.”

“So, I would say that’s an option we’re actively looking at,” he said.

He added, noting that “much of it hinges on whether the courts do the right thing or not.”

Legal experts have quickly challenged the administration’s interpretation of who has the power to suspend habeas corpus. The Constitution states that habeas corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Miller’s comments came in response to a question about President Trump’s previous suggestions regarding suspending habeas corpus to address illegal immigration. Miller justified the potential suspension by framing undocumented migration as an “invasion” of the United States, a characterization that aligns with language the administration has used in previous executive orders.

The writ of habeas corpus protects individuals from unlawful detention by requiring authorities to justify the legality of a person’s imprisonment before a neutral court. 

Here’s how it functions:

Judicial Review of Detention

• Challenging Legality: Habeas corpus allows detainees or their representatives to petition a court to examine whether their confinement complies with the law. If the detention lacks legal basis, the court orders immediate release.
• Focus on Process, Not Guilt: The writ does not determine innocence or guilt but scrutinizes whether proper legal procedures were followed. For example, it ensures detainees weren’t held without charges, denied due process, or subjected to unconstitutional laws.

Broad Applicability

• Universal Protection: Habeas corpus applies to anyone detained within U.S. jurisdiction, including noncitizens and individuals labeled as “enemy combatants.” Courts have repeatedly affirmed this, as seen in cases like Hamdi v. Rumsfeld (2004), where even U.S. citizens detained during the “War on Terror” retained habeas rights.
• Multiple Contexts: It is used in criminal convictions, immigration cases, military detentions, and extradition proceedings. For instance, federal judges recently invoked habeas corpus to block deportations of Venezuelan migrants until their legal claims were heard.

Constitutional Safeguards

• Suspension Clause Limits: The Constitution permits suspending habeas corpus only during rebellion or invasion, and even then, Congress, not the President, holds this authority. Historical suspensions, such as during the Civil War, were rare and temporary.
• Checks on Executive Power: By compelling the government to present evidence for detention, habeas corpus prevents unchecked executive authority. As Chief Justice John Marshall noted, it ensures “the right to claim the protection of the laws” against arbitrary imprisonment.

Historical and Modern Examples

• Post-9/11 Detentions: The Supreme Court ruled in Rasul v. Bush (2004) that Guantánamo Bay detainees could challenge their confinement via habeas corpus, rejecting claims that noncitizens lacked this right.
• Immigration Enforcement: Courts have used habeas petitions to halt deportations when due process was violated, such as failing to provide access to legal counsel.

In essence, habeas corpus acts as a procedural “safety valve,” ensuring that liberty is not forfeited without rigorous judicial oversight.

Georgetown University Law Center professor Steve Vladeck writes in his Substack blog., “Miller also doesn’t deign to mention that the near-universal consensus is that only Congress can suspend habeas corpus — and that unilateral suspensions by the President are per se unconstitutional.

“He’s suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose. That’s not, and has never been, a viable argument for suspending habeas corpus,” he writes.

This interpretation is supported by past Supreme Court cases. In Hamdi v. Rumsfeld (2004), Justice Scalia, joined by Justice Stevens, concluded that “where the exigencies of war prevent [normal prosecution], the Constitution’s Suspension Clause allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge.”

The United States has suspended habeas corpus only four times in its history – during the Civil War, during Reconstruction in South Carolina, in the Philippines during a 1905 insurrection, and in Hawaii in 1941 after Pearl Harbor was bombed during World War II. Each instance occurred during extraordinary circumstances of actual warfare or rebellion.

The Trump administration’s consideration comes in the context of its broader immigration enforcement efforts. In March, the administration invoked the Alien Enemies Act to remove alleged members of the Venezuelan gang Tren de Aragua, but two federal judges, including one appointed by Trump, ruled this was unlawful because the administration failed to prove the United States is being invaded.

Suspending habeas corpus for one group risks creating legal precedents that could erode protections for all individuals under U.S. jurisdiction, including citizens. While the Trump administration has framed its potential suspension as targeting migrants, constitutional safeguards and historical context suggest such actions could have broader implications. The Constitution does not explicitly allow targeted suspensions of habeas corpus. Once suspended, the legal framework for challenging detention collapses for all detainees within the jurisdiction where the suspension applies.

As University of Texas law professor Lee Kovarsky noted: “The executive could just detain you, and there would be no recourse. Obviously, they would try to detain certain noncitizens, but there’s no reason why it’s limited to them.”