Republican Senator Thom Tillis of North Carolina has issued a warning aimed at the Trump administration over its potential push for the suspension of habeas corpus rights in its hard-line immigration enforcement.
White House Deputy Chief of Staff Stephen Miller recently confirmed the administration is “actively exploring” this option, claiming constitutional authority under the alien invasion clause.
Newsweek reached out to the White House via email on Monday for comment.
Why It Matters
Habeas corpus is Latin for “you shall have the body” and is used to bring a prisoner or other detainee before a court to determine if their imprisonment or detention is legal.
President Donald Trump’s renewed push to expand deportations has consistently faced resistance in the courts. Efforts to fast-track removals and restrict legal challenges from undocumented immigrants have been met with high-profile lawsuits from immigrant advocacy groups and civil liberties organizations.
Multiple federal judges have issued injunctions blocking key aspects of the administration’s enforcement strategy, including attempts to limit access to immigration hearings and detain migrants without bail or timely review.
What To Know
Tillis expressed concern on Monday about potential collateral effects, saying he could see some “unintended consequences or some U.S. citizens getting swept up” if the Trump administration suspends habeas corpus without being careful. “They’ve got to be pitch perfect on that one if they execute,” Tillis said, adding, “No room for error,” according to the Associated Press (AP).
Federal habeas corpus is a legal principle that gives a person—and the federal courts—the ability to review the legality of a person’s incarceration. It has been suspended in regions under U.S. control during times of war and crisis, including during the Civil War and Reconstruction era by President Abraham Lincoln. A congressional legal overview describes it as “at once the last refuge of scoundrels and the last hope of the innocent.”
The Constitution permits suspension of habeas corpus only “in cases of rebellion or invasion” under Article I, Section 9. Historically, this power rests with Congress, not the president, creating significant questions about executive authority.
Miller justified consideration of the measure by characterizing illegal immigration as an “invasion,” telling reporters last week: “The Constitution is clear—that the privilege of the writ of habeas corpus can be suspended in a time of invasion.” He added that the administration’s approach depends on “whether the courts do the right thing or not.”
What People Are Saying
Eric Freedman, professor at Hofstra Law School, previously told Newsweek: “This idea should be taken no more seriously than many political sound bites. The reason habeas corpus has been celebrated for centuries as the great writ of liberty is that it protects everyone against wrongful imprisonment. It can only be suspended by Congress. And even then, the circumstances must be very different than the ones of today.”
Rogan O’Handley, a pro-Trump lawyer known as @DCDraino on X, formerly Twitter, wrote: “Stephen Miller confirms President Trump is considering suspending the Writ of Habeas Corpus to deport millions of illegal aliens. No more allowing radical judges to infringe on his constitutional deportation powers.”
Ilya Somin, professor of law at George Mason University, previously told Newsweek: “Miller is wrong. Trying to suspend the writ of habeas corpus right now would be both unconstitutional and dangerous.”
Civil rights litigator Patrick Jaicomo wrote on X: “The President lacks the power to suspend habeas corpus under Article II. That power is exclusive to Congress under Article I.”
What Happens Next
Any attempt by the Trump administration to suspend habeas corpus would likely trigger immediate and significant legal challenges.
AP contributed to this article.
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