The Trump administration is “actively looking at” the possibility of suspending the writ of habeas corpus to handle people the administration says aren’t in the country legally, White House deputy chief of staff Stephen Miller said Friday.
A writ of habeas corpus requires authorities to produce in court an individual they are holding and justify their confinement. Article I of the Constitution 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 made the comments to reporters at the White House Friday when a journalist asked if President Trump is weighing the possibility of suspending habeas corpus to handle illegal immigration.
“Well, 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 a time of invasion,” Miller said. “So it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”
The Trump administration is fighting multiple lawsuits over its handling of undocumented immigrants, including migrants it flew to El Salvador for imprisonment. Mr. Trump has flouted the idea that all people suspected of being in the country illegally should receive hearings or trials, and has criticized federal courts and judges for getting in the way of the deportation process.
“We cannot give everyone a trial, because to do so would take, without exaggeration, 200 years,” the president said in a social media post in April.
Lawyers for the Trump administration have previously cast illegal immigration as an invasion: The government deported undocumented immigrants to El Salvador using the Alien Enemies Act of 1798, a wartime law that allows for deportations when the United States is subject to an invasion by a foreign government. Some judges have pushed back on the argument.
The writ of habeas corpus has been suspended only a handful of times in the U.S. and its territories since the Constitution was ratified. It was suspended across the states during the entire Civil War; in counties in South Carolina that were overrun by the Ku Klux Klan during Reconstruction; in specific places in the Philippines during an insurrection in 1905; and in Hawaii following the bombing of Pearl Harbor. It has never been suspended in the U.S. to handle illegal immigration.
Although habeas corpus is in the Constitution, it’s a legal doctrine that dates back well beyond the country’s founding. The term “habeas corpus” is Latin for “you shall have the body,” hence the requirement that the incarcerated person be physically brought before a judge in court.
