According to White House senior adviser Stephen Miller, the Trump administration is “actively looking at” suspending the writ of habeas corpus, which is the right to challenge the legality of a person’s detention by the government.
Outside the White House, a reporter asked the deputy chief of staff for policy if President Donald Trump was considering suspending the writ of habeas corpus to address illegal immigration in the United States.
“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 in response.
“So it is an option we are actively considering. “Look, a lot depends on whether the courts do the right thing or not.”
Miller stated that judges should no longer block the deportation of undocumented immigrants who are pursuing habeas corpus.
One Democratic aide told The Hill that “Stephen Miller is not a lawyer, but he plays one on TV.” Nobody in their right mind would take his advice seriously, but sanity is scarce in this administration.”
The U.S. Constitution states in Article I, Section 9, that “the privilege of the Writ of Habeas Corpus shall not be suspended, unless in cases of rebellion or invasion the public safety may require it.”
The writ of habeas corpus has only been suspended four times, according to the National Constitution Center. They were during the Civil War (1861-1865), when parts of South Carolina were overrun by the Ku Klux Klan during Reconstruction (1871-1872), when two provinces in the Philippines were in upheaval in 1905, and in Hawaii following the bombing of Pearl Harbor in 1941.
In 2017, Supreme Court Associate Justice Amy Coney Barrett and attorney Neal Katyal wrote that the Constitution does not specify which branch of government has the authority to suspend the privilege of the writ. But most people believe that only Congress can do it.”
On April 7, the Supreme Court ruled 5-4 in favor of deporting alleged members of Venezuela’s Tren de Aragua gang to El Salvador under the 1798 Alien Enemies Act. However, the justices ruled that the government must provide deportees with “reasonable time” to challenge their removal in court before deportation.
The 1798 Alien Enemies Act has been invoked three times during wartime.
In March, administration officials failed to comply with an oral order from U.S. District Judge James Boasberg to turn around or halt flights of Venezuelan migrants bound for Salvadoran prison.
On Wednesday, U.S. District Court Judge Brian Murphy in Massachusetts stated that deporting a group of migrants overseas, possibly to Libya and Saudi Arabia, would violate court orders prohibiting the government from transporting deportees to a third country. Murphy was appointed by President Joe Biden.
Students have also challenged their detention, including Tufts’ Rumeysa Ozturk and Columbia’s Mahmoud Khalil. Ozturk was granted bail on Friday by Vermont District Judge William Sessions, who was appointed by President Barack Obama.
Miller told reporters. The Immigration and Nationality Act of 1965 removes the Judicial Branch’s jurisdiction over immigration cases.
“The courts, these radical, rogue judges, are at war not only with the executive branch, but also with the legislative branch. So all of that will influence the president’s ultimate decision,” Miller said.
Some deported men claimed they were not members of gangs.
“If Donald Trump can sweep non-citizens off the street and fly them to a torturer’s prison in El Salvador with no due process, he can do the same to citizens,” Rep. Jamie Raskin of Maryland, the top Democrat on the House Judiciary Committee, said last week. “Because if there is no due process, no fair hearing, you have no opportunity to object.”