The Trump administration is “actively looking at” suspending the constitutional right of habeas corpus in its intensifying fight against illegal immigration, White House Deputy chief of staff Stephen Miller said Friday.
While speaking to reporters outside the White House, Miller said President Donald Trump is considering invoking a constitutional power to suspend habeas corpus, a move not used since former President Abraham Lincoln during the Civil War, to address what the administration has called an “invasion” at the southern border.
“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,” Miller said. “So, I would say that’s an option we’re actively looking at.”
The principle of habeas corpus allows individuals to challenge the legality of their detention before a court. Immigration activists argue that detained immigrants, including those facing deportation, have the right to petition a federal judge to review whether their arrest, detention, or removal is lawful under U.S. law and the Constitution.
Miller stressed that the administration’s decision hinges largely on whether federal courts “do the right thing” — specifically, whether they stop blocking the administration’s efforts to deport illegal immigrants who have filed habeas challenges. He blasted federal judges, calling them “radical rogue judges” who are not just at war with the executive branch, but also with the legislative branch.
Stephen Miller says the White House is looking into suspending habeas corpus, which protects people from unlawful detentions: "A lot of it depends on whether the courts do the right thing or not." pic.twitter.com/AZLhFy79oZ
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Under the Immigration and Nationality Act, Miller argued, Congress stripped Article III federal courts of jurisdiction over immigration enforcement. Miller suggested the courts are overstepping their constitutional role by intervening in deportation cases.
Trump’s team has already made sweeping use of federal powers, invoking the 1798 Alien Enemies Act earlier this year to justify the rapid deportation of more than 230 migrants to El Salvador, where they are being held in a massive prison.
Multiple civil challenges are now pending in the courts.
Lincoln famously suspended habeas corpus during the Civil War to detain suspected rebels and prevent dissent without immediate court review. Lincoln argued it was necessary to preserve the Union during a time of rebellion and invasion. This set a historical precedent for invoking the suspension power during national emergencies.
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Miller’s comments came as the administration wrestles with court orders directly implicating Trump’s mass deportation agenda, such as the recent Supreme Court ruling that directed Trump officials to “facilitate” the return of Kilmar Abrego Garcia from El Salvador. The administration has argued that the order does not require it to pressure the Salvadoran government to bring Abrego Garcia back to the United States.
The prospect of suspending habeas corpus will likely ignite a fierce constitutional debate. However, it is just the latest sign that the Trump White House is ready to escalate the legal battle over immigration enforcement.
