Habeas corpus: Trump ‘actively looking' at suspending centuries-old legal principle of protection

The Age

10-05-2025

'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,' he said. 'All of that will inform the choice that the president ultimately makes.'
Habeas corpus is a centuries-old legal principle protecting any person – whether they are a citizen or not – from unlawful detention, and is sometimes known as 'the Great Writ'. It literally means 'you should have the body', typically referring to a person physically coming before a judge to review the legality of their incarceration.
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It has been suspended in the US on several occasions, usually in wartime. More recently, the Supreme Court in 2008 found then president George W. Bush and Congress had unconstitutionally denied the writ of habeas corpus to people deemed enemy combatants and detained at Guantanamo Bay.
Miller's suggestion the US is being invaded by illegal immigrants mirrors the legal argument the administration deployed to justify its invocation of the Alien Enemies Act to deport hundreds of people to El Salvador without review by an immigration court.
Multiple judges have now blocked the government from deporting people under this law, and the matter will almost certainly be ultimately decided by the Supreme Court. But Trump has grown increasingly frustrated by what he regards as anti-democratic interventions by unelected judges.
'Our Court System is not letting me do the job I was elected to do,' he posted on social media on Wednesday. 'Activist judges must let the Trump administration deport murderers, and other criminals who have come into our Country illegally, WITHOUT DELAY!!!'
Rumeysa Ozturk on an apple-picking trip in 2021. Credit: AP
Last weekend on NBC's Meet the Press , Trump was asked whether everybody, including non-citizens, was entitled to due process under the law, as required by the Constitution.
'I don't know,' he said. 'I'm not a lawyer. It might say that, but if you're talking about that, then we'd have to have a million or 2 million or 3 million trials.'
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Asked if he was required to uphold the Constitution, Trump said: 'I don't know … I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said.'
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