In a step that could set off a massive constitutional battle, White House senior policy adviser Stephen Miller stated Friday that the Trump administration is "actively looking at" suspending the constitutional right of habeas corpus to speed up deportations and clamp down on illegal immigration. Addressing reporters near the White House, Miller cited the "invasion" of illegal immigrants and the flooding of fentanyl across the southern border as reasons for exploring the extraordinary step. “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 time of invasion,” Miller said. “So, I would say that’s an option we’re actively looking at,” she said.

What Is Habeas Corpus?

Habeas corpus, a Latin term meaning "you shall have the body," is a core legal protection that shields individuals against illegal imprisonment. Guaranteed under Article I, Section 9 of the United States Constitution, the writ enables detainees to seek a determination of the legality of their incarceration in front of a court. Unlike a criminal trial, a habeas corpus petition doesn’t determine guilt or innocence but ensures that no one is held without legal justification or due process. It is a centuries-old principle rooted in English common law and central to American jurisprudence since the Judiciary Act of 1789.

Constitutional Clash On The Horizon?

The Suspension Clause of the Constitution states that habeas corpus can be suspended only "in Cases of Rebellion or Invasion" where the safety of the people requires it. Despite this, Miller’s statement suggests the administration believes the surge in immigration qualifies as an “invasion,” and could justify bypassing the courts. “The courts aren’t just at war with the executive branch,” Miller said. “These radical rogue judges are at war with the legislative branch as well.” They were made as tensions increased between the executive and judiciary branches, with federal judges preventing or stalling Trump-era immigration enforcement policies, such as deporting those with Temporary Protected Status (TPS).

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Impact on Immigrants And Legal Rights

If enacted, suspending habeas corpus would shut down a few remaining legal avenues, asylum seekers and detainees to contest their imprisonment. It would be a seismic shift in the balance of power between the judiciary and the executive, and may create a dangerous legal precedent. It would also potentially infringe on international human rights norms and trigger instant court challenges.

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