Legal Experts Slam Trump Administration’s Habeas Corpus Suggestion

President Donald Trump’s administration’s suggestion of suspending habeas corpus rights has been criticized by legal experts, with a Boston professor telling Newsweek that classifying the immigration situation as an invasion as justification was “absurd.”

White House Deputy Chief of Staff Stephen Miller said on Friday that the White House was exploring ways to expand its legal power to deport undocumented migrants, including suspending habeas corpus, the constitutional right for people to legally challenge their detention by the government.

White House Deputy Chief of Staff Stephen Miller talks to reporters outside of the White House West Wing on May 9, 2025, in Washington D.C.

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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.

The right is enshrined in Article I, Section 9 of the U.S. Constitution, which outlines the powers of Congress, not the president.

The Constitution’s Suspension Clause, the second clause of Article I, Section 9, states that habeas corpus “shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.”

Habeas corpus has been suspended or sharply limited in only a few exceptional moments in U.S. history—most notably by President Abraham Lincoln during the Civil War.

What To Know

Miller said suspending habeas corpus “is one option we’re actively looking at.”

But he added that “a lot of it depends on whether the courts do the right thing or not.”

“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 a time of invasion,” Miller told reporters outside the White House on Friday.

Lawrence Friedman, a professor at New England Law in Boston and author of Modern Constitutional Law, told Newsweek that “the whole notion that the immigration issue constitutes an ‘invasion’ strikes me as absurd; and worse than absurd, as a blow to the very fabric of American democracy.”

Georgetown University Law Center professor Steve Vladeck wrote in a Substack blog that Miller’s statement is both “wrong” and “profoundly dangerous,” while former federal prosecutor Jeffrey Toobin said suspending habeas corpus would be a “wild step.”

The comments came after U.S. District Judge William Sessions on Friday ordered the release of Rumeysa Ozturk, a Tufts University student from Turkey who was detained in late March, pending a final decision on her claim that she has been illegally detained.

In his post, Vladeck wrote that Miller was “being slippery” about the actual text of the Constitution.

“The Suspension Clause does not say habeas can be suspended during any invasion; it says, ‘The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.’

The last part, he wrote, is “not just window-dressing; again, the whole point is that the default is for judicial review except when there is a specific national security emergency in which judicial review could itself exacerbate the emergency. The emergency itself isn’t enough.”

He wrote that Miller “also doesn’t deign to mention that the near-universal consensus is that only Congress can suspend habeas corpus—and that unilateral suspensions by the president are per se unconstitutional.”

Vladeck added that Miller is “suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose. That’s not, and has never been, a viable argument for suspending habeas corpus.”

Former federal prosecutor Toobin told CNN’s Anderson Cooper on Friday that the “only time a president has done it unilaterally without the authorization of Congress was Abraham Lincoln during the Civil War, when Congress wasn’t even in session and couldn’t ratify what he was doing.”

He said that habeas corpus “goes back to the Magna Carta in the 13th century. The idea that someone in custody has the right to go to court to challenge their incarceration, that is so basic to Anglo-American law.

“And that’s one reason why suspending habeas corpus is considered such an extreme, extreme step. This is an example of how losses in court is causing this administration to escalate its rhetoric. And we’ll see where it goes.”

What People Are Saying

Steve Vladeck of Georgetown University wrote in his post that “the Founders were hell-bent on limiting, to the most egregious emergencies, the circumstances in which courts could be cut out of the loop. To casually suggest that habeas might be suspended because courts have ruled against the executive branch in a handful of immigration cases is to turn the Suspension Clause entirely on its head.”

Marc Elias, an attorney and longtime opponent of Trump, said on MSNBC: “It has been almost universally held and commented on that Congress has the authority to suspend habeas corpus, not Stephen Miller, not the president, but Congress and Congress has not done so here. Stephen Miller is wrong on the law, he’s wrong on the facts. But what he is, he is the representative of a deranged authoritarian who believes he can exercise all power…We need to call it out for what it is and never back down.”

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.”