Habeas corpus in the United States is used to tap into the federal court system to determine if the state's detention of a prisoner is legal. On Friday, a top White House adviser announced that the Trump administration is looking into suspending that writ for migrants, after a reporter asked if that was a possibility to deal with illegal immigration. "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," said Stephen Miller, the White House's deputy chief of staff for policy. "So, I would say that's an option we're actively looking at."
Miller added that whether or not the administration goes forward with this plan "depends on whether the courts do the right thing or not." Article I, Section 9 of the US Constitution notes that habeas can't be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it." Miller using the word "invasion" in his remarks tracks with the Trump administration's push to label the arrival of undocumented migrants into the US as just that.
Citing the National Constitution Center, ABC News reports that habeas corpus has been suspended just four times in the nation's history: during the Civil War, in South Carolina during Reconstruction, in the Philippines during unrest in 1905, and in Hawaii in 1941 after Pearl Harbor was bombed by Japan during World War II. Per Cornell, "only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ."
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CNBC notes that multiple pending civil cases against the Trump administration's deportation efforts are based on habeas claims, including that of Tufts University student Rumeysa Ozturk, a Turkish national who was detained for more than six weeks after being seized on the streets near Boston in March and released this week on bail. In her challenge, Ozturk argued that she "has not been charged with any crime," and that her "arrest and detention are designed to punish her speech and chill the speech of others." (More habeas corpus stories.)
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