President Donald Trump has been directly involved in internal White House discussions about suspending habeas corpus — the constitutional right that allows people to challenge their arrest in court, CNN reports, citing two sources familiar with the talks.
Top adviser Stephen Miller confirmed on Friday that the administration is “actively looking at” suspending the right, which could allow the government to detain people without judicial oversight.
While Trump hasn’t used the term habeas corpus publicly, one source told CNN he was referring to it when, on April 30, he told reporters: “There’s one way that’s been used by three very highly respected presidents, but we hope we don’t have to go that route… but there are ways of mitigating it.”
The administration’s private talks, paired with Miller’s public statements, make clear this is not just a fringe idea — it’s under serious plan.
If carried out, suspending habeas corpus would allow the federal government to jail people without having to justify their detention in court. It would be a sharp escalation of the Trump administration’s crackdown on immigration and a direct challenge to the authority of the judiciary.
Legal experts say such a move would face immediate constitutional challenges. Elie Honig, a former federal prosecutor and CNN legal analyst, called Miller’s claims legally baseless.
“Essentially everything Miller says about suspending habeas corpus – which would eliminate the ability of the courts to rule on immigration matters – is wrong,” Honig said. “The Constitution makes clear that suspension of habeas corpus is to be reserved for actual rebellion or invasion posing the most dire threats to public safety. And Congress has never passed a law authorizing deportations without any court involvement, as Miller suggests.”
The Constitution allows suspension of habeas corpus only “in Cases of Rebellion or Invasion.”
The Trump administration has tried to frame illegal immigration as an “invasion” to justify more aggressive actions — including invoking the Alien Enemies Act to fast-track deportations. But judges, including a Trump appointee, have rejected that argument, saying the law only applies when the U.S. is under attack by a hostile foreign power.
Trump officials were also exploring whether suspected gang or cartel members could be labeled “enemy combatants,” a move that could block them from challenging their imprisonment.
Legal scholars say suspending habeas corpus would go far beyond even those efforts. “The writ of habeas corpus has been suspended a number of times, but only in times of actual war or actual invasion, narrowly defined,” said George Mason law professor Ilya Somin.
Somin pointed out that courts have consistently struck down claims that illegal immigration qualifies as an invasion. “Every time courts have ruled on this, they have ruled against the states,” he said.
The move would be the latest in a long-running campaign by Trump and his aides to weaken the power of the courts. Trump has repeatedly lashed out at judges who blocked his immigration policies. His administration has gone as far as calling some court decisions a “judicial coup.”
The pressure on the judiciary has not gone unnoticed. Chief Justice John Roberts issued a public defense of the courts this week, saying, “The judiciary is a coequal branch of government… with the authority to interpret the Constitution as law and strike down, obviously, acts of Congress or acts of the president.” He added that the courts exist to “check the excesses of Congress or the executive.”
Whether the Trump administration will formally move to suspend habeas corpus remains to be seen. But the conversations are real, and the implications — for civil liberties and the rule of law — are serious.
