Can Trump suspend habeas corpus to speed up deportations?

Washington: White House Deputy Chief of Staff Stephen Miller said President Donald Trump is seeking ways to expand his legal powers to deport migrants who are in the United States illegally. To achieve this, he stated the administration is “actively looking at” suspending habeas corpus — the constitutional right allowing individuals to legally challenge their detention by the government.

This move would target migrants as part of the Republican President’s broader crackdown at the U.S.-Mexico border.

“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 told reporters outside the White House on Friday.

“So, I would say that’s an option we’re actively looking at," Miller said. “Look, a lot of it depends on whether the courts do the right thing or not.”

Meaning and origins of Habeas Corpus

The Latin term means “that you have the body”. Federal courts use a writ of habeas corpus to bring a prisoner before a neutral judge to determine whether their imprisonment is lawful.

Habeas corpus was included in the U.S. Constitution as a principle inherited from English common law. The English Parliament passed the Habeas Corpus Act of 1679 to ensure that the King released prisoners when the law did not justify their detention.

The Constitution's Suspension Clause, the second clause of Section 9 of Article I, states that habeas corpus “shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it”.

Historical precedents for suspension

The United States has suspended habeas corpus under four distinct circumstances in its history. These usually involved authorisation from Congress — something that would be extremely difficult today, even at Trump’s urging, given the narrow Republican majorities in the House and Senate.

President Abraham Lincoln suspended habeas corpus multiple times during the Civil War, starting in 1861, to detain suspected spies and Confederate sympathisers. He ignored a ruling from Roger Taney, who was the Supreme Court Chief Justice but acted in the case as a circuit judge. Congress later authorised suspension in 1863, allowing Lincoln to do so again.

Similarly, under President Ulysses S. Grant, Congress suspended habeas corpus in parts of South Carolina through the Civil Rights Act of 1871. Also known as the Ku Klux Klan Act, it was aimed at countering violence and intimidation against groups opposing Reconstruction in the South.

Habeas corpus was also suspended in two provinces of the Philippines in 1905, when it was a U.S. territory, due to fears of an insurrection, and again in Hawaii after the 1941 bombing of Pearl Harbor, before it became a state in 1959.

Writing before her appointment to the Supreme Court, Justice Amy Coney Barrett co-authored a piece stating that the Suspension Clause “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”.

Legal challenges likely

Miller suggested that the US is facing “an invasion” of migrants — a term used deliberately. Any effort to suspend habeas corpus would face legal challenges questioning whether the country is truly facing an invasion and if it presents an extraordinary threat to public safety.

Federal judges have so far been sceptical of the Trump administration’s past efforts to use extraordinary powers to facilitate deportations, which would make suspending habeas corpus even more difficult.

In March, Trump claimed the U.S. was facing an “invasion” of Venezuelan gang members and referenced the Alien Enemies Act of 1798 — a wartime authority he has attempted to invoke to expedite mass deportations.

The administration swiftly deported alleged members of the Tren de Aragua gang to a notorious prison in El Salvador, leading to multiple legal battles.

Federal courts in New York, Colorado, Texas, and Pennsylvania subsequently blocked the administration’s attempts to use the Alien Enemies Act for several reasons, including doubts about whether the U.S. was genuinely experiencing an invasion.

Miller, who has often criticised judges ruling against the administration, argued that the judiciary may not have the final say.

“Congress passed a body of law known as the Immigration and Nationality Act, which stripped Article III courts — that’s the judicial branch — of jurisdiction over immigration cases,” he said on Friday.

The statute, approved in 1952 and amended in 1996 and 2005, contains language that could channel some cases to immigration courts, which are part of the executive branch.

However, most appeals in such cases would still largely be handled by the judiciary and could encounter the same challenges faced by Trump's attempts to use the Alien Enemies Act.

Recent history and constitutional protections

Technically, habeas corpus has not been suspended since Pearl Harbor, although it has featured prominently in more recent legal disputes.

President George W. Bush did not suspend habeas corpus following the September 11 attacks. However, his administration sent detainees to Guantanamo Bay, Cuba, leading to lawsuits from advocates arguing the government was violating habeas corpus and other constitutional rights.

In 2008, the Supreme Court ruled that Guantanamo detainees had a constitutional right to habeas corpus, allowing them to challenge their detention before a judge. This decision led to the release of some detainees from US custody.

AFP inputs