Trump administration floats suspending habeas corpus: What's that?

Yahoo

25-05-2025

Stephen Miller, a senior adviser to the president who was answering a question about illegal immigration, told reporters May 9 that the Trump administration is 'actively looking at' suspending the constitutional right that allows people to challenge in court their detention.
Miller, the White House deputy chief of staff, said the Constitution says 'the privilege of the writ of habeas corpus can be suspended in a time of invasion.'
Habeas corpus — Latin for 'you have the body' — is used to determine if the government's detention of someone imprisoned is legal, according to Cornell Law School's Legal Information Institute. A writ of habeas corpus is used in federal courts under civil law to challenge a person's detention, commonly used by people imprisoned who are challenging the conviction that led to their prison sentence.
Here's what to know about the comments:
Miller's comments come amid several high-profile cases involving the Trump administration where habeas corpus has become a central issue.
The cases have included people without lawful status in the country, as well as international students targeted for their pro-Palestinian advocacy.
On May 9, a federal judge in Vermont ordered the release of Tufts University student Rumeysa Ozturk, a Turkish national detained for an op-ed in her student newspaper, from a Louisiana immigration detention facility under her writ for habeas corpus.
A week earlier, another federal judge in Vermont granted the habeas petition of Columbia University student Mohsen Mahdawi, a legal permanent resident and pro-Palestinian activist, to release him from custody.
After his comments about possibly suspending habeas corpus, Miller said the administration's next steps depended on the courts 'to do the right thing or not,' he said.
Miller said the Immigration and Nationality Act, passed by Congress, removed the judicial branch with jurisdiction over immigration cases, calling it "jurisdiction-stripping legislation."
"The courts aren't just at war with the executive branch," he said. "The courts are at war — these radical, rogue judges — with the legislative branch, too."
Stephen Vladeck, a law professor at Georgetown University and author of the Supreme Court newsletter "One First," sharply criticized Miller for what he called a series of 'incendiary,' 'blatantly false' and 'profoundly dangerous' comments.
In a newsletter posting Friday, Vladeck said Miller was wrong when he implied that Congress has passed 'jurisdiction-stripping legislation' that wrested control of key immigration matters – including the suspension of habeas corpus – from courts and judges.
'I spent a good chunk of the first half of my career writing about habeas and its history, but the short version is that the Founders were hell-bent on limiting, to the most egregious emergencies, the circumstances in which courts could be cut out of the loop,' Vladeck wrote. 'To casually suggest that habeas might be suspended because courts have ruled against the executive branch in a handful of immigration cases is to turn the Suspension Clause entirely on its head.'
And if anyone is able to suspend habeas corpus besides the courts, Vladeck wrote, 'the near-universal consensus is that only Congress can suspend habeas corpus—and that unilateral suspensions by the President are per se unconstitutional.'
Habeas corpus has historically been used for people imprisoned without judicial process, and the concept is found in the Magna Carta, in 1215. Before the United States' founding, English common law had established habeas corpus to object to imprisonment.
American framers enshrined habeas protections — and how they could be suspended — in the Constitution, under Article I establishing the legislative branch. The Suspension Clause says, 'The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.'
Federal statutes — dating back to the first Judiciary Act of 1789 in the first Congress — provide courts the authority to grant habeas relief to people imprisoned. Successive federal laws and court decisions have also affirmed this right.
Most observers agree that it can't be suspended unilaterally by the executive branch. The Suspension Clause is found in Article I, establishing the powers of Congress.
Amy Coney Barrett, now a Supreme Court justice appointed by Trump, and Neal Katyal, a former acting Solicitor General in the Obama administration, said in a National Constitutional Center interpretation that the Suspension Clause provides that habeas corpus can't be suspended except in 'extraordinary circumstances.' That is, when a rebellion or invasion occurs, and that it's required by public safety, they said.
Cornell Law says only Congress can suspend the writ of habeas corpus, either by its own legislation or through expressed delegation to the executive branch.
'The Executive does not have the independent authority to suspend the writ,' Cornell Law said.
Barrett and Katyal's interpretation said it had been suspended four times before.
President Abraham Lincoln controversially suspended writ privilege nationally early in the Civil War, but Congress subsequently enacted a law permitting suspension in March 1863.
In three other instances, Congress has authorized suspension for the executive branch to act.
This included when the Ku Klux Klan overran 11 counties in South Carolina during the Reconstruction era in acts of domestic terrorism.
Later, habeas was suspended in two provinces in the Philippines during a 1905 insurrection.
Most recently, the United States suspended habeas writ in Hawaii after the Japanese bombing of Pearl Harbor that marked the country's entrance into World War II.
This article originally appeared on USA TODAY: Trump adviser Stephen Miller floats suspending habeas corpus