Trump reportedly engaged in discussions about suspending habeas corpus, sources say.
Update News Today May 9,2025,9:44 pm ET
President Donald Trump has been directly involved in internal discussions about potentially suspending habeas corpus—the constitutional right that allows individuals to challenge their detention in court—according to two sources familiar with the matter.
Stephen Miller, Trump’s top policy aide, confirmed publicly on Friday that the administration is “actively looking at” suspending the writ. “It depends on whether the courts do the right thing or not,” he said.
These internal conversations, along with Miller’s public comments, indicate that the proposal is being seriously considered within the White House.
Although Trump has not explicitly mentioned habeas corpus in public, one source said he was alluding to it in April when he discussed options for responding to nationwide injunctions blocking his deportation policies. “There’s one way that’s been used by three very highly respected presidents,” Trump said on April 30. “Hopefully we don’t have to go that route.”
It’s unclear whether the administration will formally pursue the idea, which would likely face immediate legal challenges. The White House declined to comment further beyond Miller’s remarks.
CNN legal analyst and former federal prosecutor Elie Honig criticized Miller’s interpretation, saying, “Everything Miller says about suspending habeas corpus is wrong. The Constitution allows it only in cases of rebellion or invasion, and Congress has never authorized deportations without court involvement.”
The Trump administration has argued that the current surge in illegal border crossings constitutes an “invasion,” which they claim could justify bypassing due process for migrants. A similar argument is being used to support Trump’s invocation of the Alien Enemies Act, allowing fast-track deportations without court oversight.
However, multiple judges—including one appointed by Trump—have rejected that justification, ruling that the situation does not meet the constitutional or legal definition of an invasion.
The administration has also explored whether to label certain cartel and gang members in the U.S. as “enemy combatants” to enable indefinite detention with limited legal recourse, as CNN previously reported.
Suspending habeas corpus would mark a significant escalation—effectively allowing the government to detain individuals, including migrants, without offering a legal path to challenge their imprisonment.
Legal scholars warn that such a move would be unprecedented outside wartime. “The writ has only been suspended in times of actual war or invasion,” said George Mason University law professor Ilya Somin. Though the Constitution doesn’t explicitly require congressional approval, it's widely accepted that legislative authorization would be necessary—a point echoed by the late Justice Antonin Scalia.
States have previously attempted to declare illegal immigration an invasion to justify taking immigration enforcement into their own hands, but courts have consistently ruled against them, Somin noted.
Amid these tensions, Trump and Miller have both frequently attacked the judiciary. Miller has called adverse court rulings a “judicial coup,” while Trump has repeatedly criticized individual judges.
In response, Chief Justice John Roberts emphasized judicial independence in remarks Wednesday, reminding the public that the judiciary is a coequal branch of government with the authority to check the powers of Congress and the president.
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