The Trump Administration Seriously Considered Unilaterally Suspending the Writ of Habeas Corpus

White House Deputy Chief of Staff Stephen Miller told reporters in May 2025 that illegal immigration was an “invasion” and that the Trump administration was “actively considering” suspending the writ of habeas corpus to facilitate its mass deportation campaign. It turns out that Miller wasn’t content with just spitting: latest reporting with New York TimesHis comment reflected a serious internal debate about whether the law should be unilaterally overridden. old principle People captured by the government have the right to challenge their detention in court.

This incident is alarming as it shows the Trump administration’s disregard for civil liberties. But it’s also at least somewhat reassuring, because Miller’s jaw-dropping proposal was ultimately rejected over the objections of White House Staff Secretary Will Scharf, a conservative lawyer who explained why it failed legally.

Miller was right that allowing detainees to seek judicial review would make it more difficult to expel unwanted aliens from the country. But he was wrong to think that President Donald Trump could avoid that requirement with executive order.

Just a month earlier, the Supreme Court had unanimously ruled that Venezuelan gang members detained under the Alien Enemies Act (EEA) had the right to due process to file habeas corpus petitions in the territory where they were detained. Foreign students had likewise used such petitions to challenge claims that they were “subject to expulsion” because their political views undermined U.S. foreign policy interests.

Miller thought he had found a solution to the difficulty of due process. “The Constitution is clear,” he said. in question. “The privilege of the writ of habeas corpus may be suspended in time of invasion.”

The Constitution does that. to say “The privilege of the writ of habeas corpus shall not be suspended, unless the public safety may require it, in cases of rebellion or occupation.” But as was made clear during the litigation over Trump’s invocation of the EEA, unauthorized immigration is not an “invasion” as the Framers described it.

Another problem for Miller: The power to suspend the corpus of notice has long been understood to rest with Congress, not the president. “This is clear from the text and structure of the Constitution,” William & Mary law professor Jonathan Adler said. notes. “The suspensive clause is contained in section 9 of Article I,” which includes “various enumerated restrictions on legislative power.”

Scharf made this point in April 2025. memory “Courts have almost uniformly held that suspending habeas corpus rights requires action by Congress,” he noted to White House Chief of Staff Susie Wiles. He also explained that all previous suspensions were in response to wars or armed rebellion.

The memo underlined the importance of the principle, which Miller claimed could be overridden with a stroke of the president’s pen. “The history of habeas corpus goes back to the birth of English common law,” Scharf said.

“The denial of habeas corpus rights was a major grievance underlying the American Revolution,” Scharf added, “and the right to petition federal courts for habeas review dates back to the beginning of the Republic. It essentially prevents government actors from arbitrarily detaining, imprisoning, or executing individuals.”

Scharf also coolly responded to Miller’s suggestion that he invoke the outdated and dangerously vague Riot Act in response to protests against Trump’s crackdown on immigrants. in October 2025 memory Scharf told Wiles: Insurrection Act As a “glass-breaking exception to the traditional, general prohibition on the use of the military in the domestic environment.”

Scharf said most legal analysts agree that the law gives the president “extraordinarily broad” and “essentially unreviewable” powers. But he warned that invoking the law would likely “lead to vigorous litigation and potentially negate any advantage in terms of flexibility it would provide the President.”

Scharf’s calmer mind prevailed, as did Miller’s idea of ​​suspending habeas corpus. Fortunately, the Trump administration is not yet completely devoid of advisors who see the downsides of such proposals.

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