It may come as no surprise, then, that the Trump administration is discussing suspending the writ of habeas corpus. This important legal right provides individuals with the opportunity to challenge their detention. This proposed action would be a huge ramp up of the administration’s efforts. Our primary concern is that its true intent is to subvert the rule of law in American courts. Stephen Miller, former senior advisor to ex-President Donald Trump, recently declared that the administration is indeed working on this option. He indicated that the decision might come down to how receptive the courts are to their policies.
The Great Writ of Habeas Corpus has a storied history in the United States, having only been suspended four times in our nation’s history—including by Abraham Lincoln. In fact, President Abraham Lincoln suspended it during the Civil War, invoking national security concerns. The renewed debate over its possible suspension is taking place against a backdrop of a contentious immigration policy and deportation push.
Miller wanted to make sure the administration’s view was front and center. His behalf argued that the constitution unambiguously provides for it through the supreme law of the land provision that suspending the privilege of the writ of habeas corpus in times of invasion. So that’s an idea we’re really pursuing hard. Much of it will come down to whether the courts decide to act or not act responsibly.
The long-term implications of suspending habeas corpus would be enormous, especially for the millions of immigrants who call this country home. Users such as Mahmoud Khalil and Rümeysa Öztürk have jointly filed habeas petitions, successfully halting deportation efforts made against them. Critics argue that such a suspension would further enable the Trump administration to engage in unlawful deportations without providing due process.
The Trump administration has made havens out of people by personally targeting them through habeas corpus challenges. They have furiously tried to expel students who dare show solidarity with the Palestinian cause. Legal experts and human rights defenders have universally condemned such actions. They contend that deportations need to happen due to due process and established legal norms.
The administration has cited the Alien Enemies Act as its authority for these actions. This obscure 18th-century law gives the president the power to deport American citizens during wartime. Legal experts argue the government is unable to mount a meaningful justification to support these deportations. Several judges have dismissed those claims of an “invasion” by Tren de Aragua, a Venezuelan gang. Those claims had been the basis for officials’ actions.
In previous cases, courts rushed to stop illegal deportations ordered by the administration. Unlike Trump, who routinely bashes judges who make adverse rulings and who many times in the past few years have actively disobeyed judges’ orders, the continued, escalating conflict between the executive branch and judicial authority remains deeply troubling. We need to recommit ourselves to respect for judicial independence and constitutional principles.