Stephen Miller, the White House deputy chief of staff who orchestrated President Trump’s crackdown on immigration, told reporters on Friday that the administration was considering suspending the rights of immigrants to challenge their detention in court before being deported.
“The Constitution is clear,” he said outside the White House, arguing that the right, known as a writ of habeas corpus, “could be suspended in time of invasion.”
“That’s an option we’re actively looking at,” he said, adding, “A lot of it depends on whether the courts do the right thing or not.”
Article I of the Constitution addresses writs of habeas corpus, calling them a privilege that “shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
Only one president in the country’s history has suspended habeas corpus: Abraham Lincoln did so on multiple occasions during the Civil War. And in 1863, Congress passed a law giving him the explicit right to do so for the duration of those hostilities.
Mr. Trump and his deputies have repeatedly likened their crackdown on illegal immigration to a war or repelling an invasion. He has referred in speeches to waves of migrants entering the United States as invasions, and in March invoked the Alien Enemies Act — another wartime authority — to accelerate deportations of Venezuelans accused of being members of the gang Tren de Aragua. Deportations carried out under that law have been challenged in court, and the Supreme Court has blocked any further deportations under that law for now.
The Trump administration has argued in some of those cases that the courts cannot overrule his decisions regarding how, where and when immigrants are deported.
Mr. Miller echoed that sentiment in his comments to reporters outside the White House on Friday, arguing that because Congress put the immigration courts under the executive branch, and not the judicial branch, Mr. Trump’s rulings could not be blocked by the courts.
