Detained people might lose legal right to challenge detention in court in aggressive Trump deportation plans
10 May 2025, 18:50
The Trump administration is ‘actively looking’ at ending habeas corpus, a constitutional right that gives detained people the right to challenge their detention in court.
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The controversial move, announced by top White House aide Stephen Miller, would mark an extreme escalation in Trump’s deportation strategy.
The Trump administration has already tried to deport people without due process, by invoking the Alien Enemies Act (AEA), which allows for such deportations during wartime.
But judges have blocked many of these attempts to ramp up deportations, deeming them illegal or unconstitutional.
“The constitution is clear, and that of course is the supreme law of the land, that the privilege of the writ of habeas corpus could be suspended in time of invasion,” Miller told reporters at the White House.
“So that’s an option we’re actively looking at. A lot of it depends on whether the courts do the right thing or not.”
Habeas corpus is a constitutional writ which “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,” the US constitution says.
A number of detained people have ongoing legal challenges under habeas corpus, including pro-Palestine activist Mahmoud Khalil, who was arrested by plain-clothed officers at his home.
His case has become a political flashpoint, and sparked debates over free speech and Trump’s deportation strategy, as the president’s administration did not give a reason for his detention except that his presence ‘could harm US foreign policy interests’.
This forms a pattern in the White House’s deportation strategy, which has seen them provide little evidence in attempts to deport university students through legal means - specifically students that show support for Palestine.
Habeas corpus has only been suspended four times in US history, most famously by Abraham Lincoln during the civil war.
Miller, the White House deputy chief of staff, is well-known for his far-right positions and his extreme approach to effecting mass deportations.
The Trump administration has attempted to justify their programme of mass deportations by claiming the US is under invasion by the Venezuelan gang ‘Tren de Aragua’.
But federal judges, who have been appointed by Trump and five other presidents, have rejected these claims and blocked several deportations.
Miller said habeas corpus is a "privilege", and said Congress already passed legislation that stripped judicial courts of jurisdiction over immigration cases.
But legal experts have questioned this interpretation of the law.
"Congress has the authority to suspend habeas corpus - not Stephen Miller, not the president," Marc Elias, a lawyer for the Democratic Party, told MSNBC.