President Donald Trump has been personally involved in discussions inside the administration over potentially suspending habeas corpus, a legal procedure that allows people to challenge their detention in court, two people familiar with the consideration told CNN.
One of Trump’s top aides, Stephen Miller, confirmed publicly Friday that the administration was “actively looking at” suspending habeas corpus, adding that it “depends on whether the courts do the right thing or not.”
Both the private discussions and Miller’s public comments show this is under serious consideration inside the West Wing.
While Trump has not explicitly mentioned habeas corpus in public, it’s what he was referencing last month when he commented on steps he could take to combat nationwide injunctions against his actions on deportations, according to one of the people familiar with the talks.
“There are ways to mitigate it and there’s some very strong ways,” Trump told reporters April 30. “There’s one way that’s been used by three very highly respected presidents, but we hope we don’t have to go that route. But there is one way used successfully by three presidents – all highly respected – and hopefully we don’t have to go that way but there are ways of mitigating it.”
It remains unclear whether this is something the administration will actually pursue, and experts say it will likely generate legal challenges. The White House declined to comment beyond Miller’s statement.
“Essentially everything Miller says about suspending habeas corpus – which would eliminate the ability of the courts to rule on immigration matters – is wrong,” CNN senior legal analyst and former federal prosecutor Elie Honig said.
“The Constitution makes clear that suspension of habeas corpus is to be reserved for actual rebellion or invasion posing the most dire threats to public safety. And Congress has never passed a law authorizing deportations without any court involvement, as Miller suggests.”
The Constitution only allows habeas corpus to be suspended when “in Cases of Rebellion or Invasion the public Safety may require it.”
Miller’s comments pick up on ongoing efforts by the Trump administration to use the current state of illegal border crossings to claim that the US is under invasion – which the administration says allows the government to eschew due process protections afforded to migrants. The administration is making a similar argument in defending Trump’s invocation of the Alien Enemies Act, which would allow the government to quickly deport migrants without adherence to such due process procedures.
Multiple judges, including a Trump appointee, have rejected the invocation, saying in rulings that the administration hadn’t shown the United States is under invasion by a hostile foreign power, as laid out under the 18th century statute.
The Trump administration has also been examining whether it can label some suspected cartel and gang members inside the US as “enemy combatants” as a possible way to detain them more easily and complicate their ability to challenge their imprisonment, CNN previously reported.
Suspending the writ of habeas corpus would take Trump’s efforts even farther – allowing the government to detain migrants without giving them the opportunity to challenge that detention, essentially letting the administration detain people without providing justification.
“The writ of habeas corpus has been suspended a number of times, but only in times of actual war or actual invasion, narrowly defined,” Ilya Somin, a professor of law at George Mason University, told CNN in January.
While the Constitution does not explicitly require Congress’ approval for such a suspension, it’s long been understood that the legislature would likely need to play that role, as the late conservative Justice Antonin Scalia has noted in a dissent.
Somin said some states have also tried to claim, starting in the 1990s, that illegal immigration amounted to an invasion that would allow them to engage in war or to disregard federal laws that restrict immigration enforcement.
“Every time courts have ruled on this, they have ruled against the states,” Somin said.
Trump administration officials have made it clear that they believe the judicial branch is hindering their ability to enforce immigration laws. President Donald Trump has personally attacked judges in public statements, and Miller has likened court rulings against the administration to a “judicial coup.”
In a sign of the mounting pressure, Chief Justice John Roberts stressed the importance of judicial independence during public remarks Wednesday.
“The judiciary is a coequal branch of government, separate from the others with the authority to interpret the Constitution as law and strike down, obviously, acts of Congress or acts of the president,” Roberts said at an event in his native Buffalo, New York.
The judiciary’s role, Roberts added, is to “decide cases but, in the course of that, check the excesses of Congress or the executive.”
This headline and story have been updated with additional details.
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