Trump eyes suspending habeas corpus for migrants

White House deputy chief of staff for policy Stephen Miller said Friday that the Trump administration is “actively looking at” suspending the writ of habeas corpus — the constitutional right to challenge in court the legality of a person’s detention by the government — for migrants.

Miller’s comment came in response to a White House reporter who asked about President Donald Trump entertaining the idea of suspending the writ to deal with the problem of illegal immigration into the United States.

Asked when that might happen, Miller responded: “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.

A number of pending civil cases challenging the Trump administration’s deportation of undocumented immigrants in the United States are based on habeas claims.

The Trump administration has chafed at orders by judges blocking efforts to summarily deport immigrants, including alleged gang members, without court proceedings.

Miller spoke hours after a federal judge in Vermont ordered the release of Tufts University student Rumeysa Öztürk from the custody of U.S. immigration authorities.

Öztürk, who had been imprisoned for 45 days after the Trump administration revoked the Turkish citizen’s student visa based on an assessment that she “may undermine U.S. foreign policy by crearting a hostile environment for Jewish students and indicating support for a designated terrorist organization.”

Öztürk challenged her detention with a petition for writ of habeas corpus, which noted that she “has not been charged with any crime,” and which argued that her “arrest and detention are designed to punish her speech and chill the speech of others.”

Miller said that Trump’s decision on whether to suspend the writ of habeas corpus “depends on whether the courts do the right thing or not.”

Miller implied that “the right thing” is for judges to stop blocking the administration’s deportation of immigrants in cases where those people are exercising habeas writs.

The writ has been suspended only four times since the U.S. Constitution was ratified. And in all but one of those instances, Congress first authorized the suspension.

The idea of habeas corpus originated in English common law.

“No man shall be arrested or imprisoned…except by the lawful judgment of his peers and by the law of the land,” a provision in the Magna Carta, signed by King John in the early 13th Century, says.

The U.S. Constitution, in Article 1, section 9, 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.”

Miller’s use of the word “invasion” reflects the Trump administration’s argument that the U.S. faces an “invasion” of undocumented migrants.

The administration likewise has claimed that there is a national emergency from the influx of the deadly opioid fentanyl into the U.S. that justifies the imposition of high tariffs on China, Canada, and Mexico without prior authorization by Congress.

Miller said that Congress had stripped federal courts of jurisdiction over immigration cases with the Immigration and Nationality Act.

“The courts aren’t just at war with the executive branch, the courts are at war, these radical rogue judges, with the legislative branch as well,” Miller said.

“So all of that will inform the choices the president ultimately makes.”

Supreme Court Justice Amy Coney Barrett, in an essay co-written with the attorney Neal Katyal for the National Constitution Center, noted that the clause in the Constitution addressing the possible suspension of the writ of habeas corpus “does not specify which branch of government has the authority to suspend the privilege of the writ.”

“But most agree that only Congress can do it,” the essay says.

“President Abraham Lincoln provoked controversy by suspending the privilege of his own accord during the Civil War, but Congress largely extinguished challenges to his authority by enacting a statute permitting suspension,” the article notes.

“On every other occasion, the executive has proceeded only after first securing congressional authorization,” Barrett and Katyal wrote.

“The writ of habeas corpus has been suspended four times since the Constitution was ratified: throughout the entire country during the Civil War; in eleven South Carolina counties overrun by the Ku Klux Klan during Reconstruction; in two provinces of the Philippines during a 1905 insurrection; and in Hawaii after the bombing of Pearl Harbor.”