If White House Deputy Chief of Staff Stephen Miller is to be believed, Team Trump is poised to drive another stake through the heart of the Constitution. On May 9, Miller told reporters that the administration is considering whether to suspend the right to habeas corpus – known as “The Great Writ” – in immigration cases. Suspending habeas corpus, which allows individuals to challenge the legality of their detention in court, would be unconstitutional.

The Suspension Clause, located in Article I, Section 9, Clause 2 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.”

In light of the several recent losses the administration has suffered in immigration cases, Miller said it is now pondering the suspension of habeas corpus. He declared:

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. So … that’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not. At the end of the day, Congress passed a body of law known as the Immigration Nationality Act which stripped Article III courts, that’s the judicial branch, of jurisdiction over immigration cases. So Congress actually passed what’s called jurisdiction stripping legislation. It passed a number of laws that say that the Article III courts aren’t even allowed to be involved in immigration cases.

As Georgetown law professor Steve Vladeck points out, “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.”

Moreover, Miller’s alarming declaration contains several legal and factual errors.

Only Congress, Not the President, Has the Power to Suspend Habeas Corpus

Contrary to Miller’s assertion, only Congress — not the president — can suspend habeas corpus, and only in rare circumstances. “Although [the Suspension Clause] does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I,” Antonin Scalia wrote in dissent in the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld. (Article I of the Constitution lists the powers of Congress).

Amy Coney Barrett, a current member of the Supreme Court, agrees with Scalia. When she was a judge on the 7^th Circuit U.S. Court of Appeals, she and Neal K. Katyal, a professor at Georgetown Law Center, wrote for National Constitution Center: “The 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.” That is because the Suspension Clause is located in the section of the Constitution that details the powers of Congress, and habeas corpus has only been suspended four times since the Constitution was ratified in 1789.

President Abraham Lincoln suspended habeas corpus during the Civil War, but Congress then enacted a statute allowing the suspension. In the other three instances, the president enacted the suspension only after first obtaining congressional authorization: in 11 South Carolina counties overrun by the Ku Klux Klan during Reconstruction; in two provinces of the Philippines in 1905 to quash an Indigenous rebellion against colonial rule by the U.S.; and in Hawaii after Pearl Harbor was bombed.

There Is No “Invasion”

Miller is also wrong because there is no “invasion” currently occurring in the United States, despite several of Donald Trump’s January 20 executive orders declaring that there is an invasion of the southern U.S. border.

For example, in his order entitled “Guaranteeing the States Protection Against Invasion,” Trump declared, “I have determined that the current state of the southern border reveals that the Federal Government has failed in fulfilling this obligation to the States and hereby declare that an invasion is ongoing at the southern border, which requires the Federal Government to take measures to fulfill its obligation to the States.” He claimed that he was suspending what he described as “the physical entry of aliens involved in an invasion into the United States across the southern border until I determine that the invasion has concluded.”

Trump also signed an order titled “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States.” It calls the situation at the southern border an “invasion” that includes “unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.”

Rear Adm. James McPherson, former U.S. undersecretary of the Army, said on PBS “NewsHour” that “We don’t have a war going on at the southern border. We have a law enforcement crisis perhaps. But that’s not an invasion.”

Several federal courts have also rejected the idea that there is an ongoing invasion at the southern border.

In February 2024, a federal district court in Texas rejected the equating of immigration with an invasion, concluding that “surges in immigration do not constitute an ‘invasion’ within the meaning of the Constitution.”

During the first week of May, three federal judges rejected the Trump administration’s argument that the immigration situation constitutes an invasion.

U.S. District Judge Fernando Rodriguez, Jr., in South Texas, granted a petition for writ of habeas corpus on May 1 and rejected the Trump administration’s attempt to justify using the Alien Enemies Act by arguing that the U.S. was being invaded by a Venezuelan gang.

On May 6, U.S. District Judge Charlotte N. Sweeney in Colorado called the Trump administration’s definition of invasion “unpersuasive” and rejected the government’s argument that the invocation of the Alien Enemies Act was beyond judicial review.

Also on May 6, U.S. District Judge Alvin K. Hellerstein in New York held that the Tren de Aragua gang (TdA) is not attacking the United States. “TdA may well be engaged in narcotics trafficking, but that is a criminal matter, not an invasion or predatory incursion,” he wrote, and halted deportations from most of New York City and nearby areas.

“[Hellerstein] joined several others in correctly recognizing the president cannot simply declare that there’s been an invasion and then invoke a wartime authority during peacetime to send individuals to a Gulag-type prison in El Salvador without even giving them due process,” ACLU attorney Lee Gelernt  said in a statement.

In addition, Miller failed to mention the second part of the test for “invasion” set forth in the Suspension Clause, namely, that the public safety may require suspension.

Immigration Decisions Are Entitled to Appellate Review

Finally, Miller is wrong because the Immigration and Nationality Act does not categorically strip appellate review (a legal examination of a lower court’s proceedings to determine if its ruling was made in error) from immigration cases. Although immigration matters generally start in immigration courts, appeals from those decisions are routinely heard by Article III (federal) courts.

In Boumediene v. Bush, the Supreme Court ruled that noncitizens held within the United States have the right to seek a writ of habeas corpus.

Several of the noncitizens that the Trump administration has been trying to deport – including Mahmoud Khalil and Rümeysa Öztürk – filed habeas corpus petitions challenging their deportation.

“A suspension [of habeas corpus] is temporary, but the power it confers is extraordinary,” Barrett and Katyal wrote in their National Constitution Center article. “When a suspension is in effect, the president, typically acting through subordinates, can imprison people indefinitely without any judicial check.”

It is becoming increasingly clear that Trump will stop at nothing to impose his will – the commands of the Constitution notwithstanding. On May 4, Trump refused to say on “Meet the Press” that he was bound by the Due Process Clause of the Constitution.

For now, federal judges are serving as speed bumps in Trump’s cruel and illegal war on migrants. Trump has packed the Supreme Court with radical right-wingers who may well overturn some of those lower court rulings. But Trump has already defied the high court’s order that his administration facilitate the return of Kilmar Abrego Garcia from El Salvador. We can only hope that the “justices” on the high court maintain their reverence for the Constitution, even though the president does not.

---

---