Suspending the right to challenge the legality of one’s detention in court would shred a core tenet of the Constitution, writes Marjorie Cohn.
White House Deputy Chief of Staff Stephen Miller speaking at the 2025 Conservative Political Action Conference in National Harbor, Maryland, in February. (Gage Skidmore/ Flickr/ CC BY-SA 2.0)
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 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,” Justice 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 7th 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 Jan. 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.”
Department of Homeland Security Secretary Kristi, on right, during a U.S. Immigration and Customs Enforcement, or ICE, operating in Phoenix in April. (Tia Dufour, Flickr, Department of Homeland Security, Public Domain)
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 the 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.”
Before then, 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.”
[On Tuesday, a federal judge in Pennsylvania backed the president’s invocation of the Alien Enemies Act to deport Venezuelans he claims are part of a criminal gang.]
Before that, however, 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 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.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.
This article was first published by Truthout.
The views expressed in this article may or may not reflect those of Consortium News.
So its cCongress that has the power? Meh? They are also supposed to be the body that authorises military action….and look how that never happens now. TheUS Constitution is dead.
American style ‘Salami Tactic’…shredding the Constitution one tenet at a time.
There was a huge increase in illegal immigration under Biden. He essentially enabled open borders. That has many consequences and many costs. Why should this country provide “due process” to a massive number of people who entered this country by breaking its law?
Especially when doing so would add enormous cost.
“Breaking the law” is exactly the terrain where due process must prevail. If you haven’t understood that, you’ve been reading an alternative Constitution.
Steve Miller reminds me a lot of Yuval Harari. Both are nut jobs.
IF there is an invasion, then we (former administration) allowed it and should be arrested for treason. However, as for reasons pointed out in this article what is going on is not considered an invasion.
Why the modern left loses …..
2025 …. “We can only hope that the “justices” on the high court maintain their reverence for the Constitution, even though the president does not.”
compare this to 1964 …..
“And that — that brings me to the second mode of civil disobedience. There’s a time when the operation of the machine becomes so odious, makes you so sick at heart that you can’t take part! You can’t even passively take part! And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus — and you’ve got to make it stop! And you’ve got to indicate to the people who run it, to the people who own it — that unless you’re free the machine will be prevented from working at all!!” — Mario Savio, Berkeley Free Speech Movement, Dec. 1964.
One sense of struggle powered the civil rights movement and stopped an American war and genocide. The other sense of struggle is on a 4 decade losing streak. Can you spot the difference?
I was there that day. I agree with you…and as to your question….
From a perspective of my lifetime I would suggest a critical fracture to the left began in the sixties. As the Anti-War protests captured the headlines and there were Civil Rights riots in cities there was also a new toleration for Zionist Supremacism that had quietly taken root and was in full flower by June, 1967. The left was gutted of it’s moral structure by many pro-Zionist and otherwise holocaust guilt soaked leaders. This disease of genocide toleration has now spread to all the critical nodes of our government…and warped our personal ability to determine right from wrong.
If they’re here illegally, they have to leave. Period. Certain judges are nullifying the will of tens of millions of American voters.
Either American CITIZENS of all races and ethnicities hold value as American citizens or they don’t. Our African-American, Chicano and working class white citizens are hardest hit by the lower wages and higher rents.
On a different note: insofar as the green card holders in good standing being deported solely bc of activism against the Jewish supremacist genocide, that’s a separate issue, and these forced deportations are repugnant.
“Certain judges are nullifying the will of tens of millions of American voters.”
No, “certain judges” are upholding the constitution. If you think tens of millions of voters can nullify the constitution just because they incorrectly blame illegal aliens for high rents and low wages then you are sorely mistaken. It will take a lot more than misinformed voters to overturn the constitution, period.
Only four times? Are we missing something here? Obama signed away our right to habeas corpus with the 2012 National Defense Authorization Act. The government can now assert that you’re a terrorist, enemy combatant, etc., throw you in dungeon, and indefinitely deny your right to a trial or anything resembling due process.
I agree with you on both points. What is missing in this conversation is the acknowledgment that uncontrolled population growth is the fire under the kettle…. whether the humans are legal citizens or not. In my estimation every country needs a sustainable population policy in concert with rules of responsible citizenship.
There is absolutely no will either among the people or the world’s leaders to attempt, with efficacy, the moving toward sustainable population levels. We are headed, assuming no catastrophic reductions, toward 12 billion by 2100; and there is no honest responsible discussion of the options to reduce that progression with equity and justice. The closest I have seen is this PNAS report:
hxxps://www.pnas.org/doi/full/10.1073/pnas.1410465111
In fact, there is increasing economic and political pressure to increase population to drive various forms of advantage among nations, regions, religions and other demographics that fear being marginalized if numbers are reduced.
WORLD POPULATION COUNTER: hxxps://www.worldometers.info/world-population/
If you read the early Americans, the Declaration of Independence, the Bill of Rights, they do not use the word “Citizen.” They keep is simple and state that America is all about “All” people having rights that can not be taken away from them. All people. The Bill of Rights is about restricting the government, and again does not restrict these protections to “Citizens”. They just try to flat out state that the government can never take anything of value from a person without due process, and that meant in their mind a fair and speedy trial and a jury.
That was once the American Dream. So, if you ask the question of whether I think the word “Citizen” hold value, I stand with Thomas Jefferson and his committee who stated quite clearly their belief that “All” people have certain unalienable rights and that among these are Life, Liberty and the Pursuit of Happiness.
If you search the Rules of this Rules Based Order (ie, the Constitution) for the word “citizen”, about the only place it occurs in the original document is in the qualifications for office. Then, in the amendments that tried to fix the Constitution after the Civil War, they openly declared that all people born in the USA are citizens and that no state has the power to try to pretend that they don’t have rights because a state does not recognize them as citizens from another state. If you search on the word citizen in the Rules, that’s when you start to see it hits in larger numbers.
Interesting the change in America. America used to argue about rights, and tried to expand those rights. Now America argues about who is a “Citizen” which they try to restrict and deny because they also claim that rights only connect with citizenship and that America never really meant that it believed in Freedom for All People. But we do still bomb the world to pieces in the name of “Freedom”
The whole point of the Bill of Rights is that while the government may hold certain powers, the people have rights that can never be violated no matter who won an election. That is America. Donald Trump does not have the power to violate those rights because he won by millions of votes, just like Joe Biden did not have the power to violate those rights because he also won by millions of votes. That’s America and the Bill of Rights. And, for once I’m with Dubya … you are either for it, or agin it. Give me Liberty!
The “will” of voters doesn’t override the law. What are you talking about? “Certain” judges are “nullifying” the “will” of “tens of millions” of American “voters?” That’s the kind of stupid and ill-considered totalitarian and dictatorial nonsense you hear from Miller and Noem and Trump. How do American citizens “hold value?” What does that even mean? You’re making a purely political argument and imagining you’re onto some kind of legal, principled trail to justice and fairness for “voters.”