Trump team mulls suspending the constitutional right of habeas corpus to speed deportations. Can it?

WASHINGTON AP White House deputy chief of staff Stephen Miller says President Donald Trump is looking for options to expand its legal power to deport asylum seekers who are in the United States illegally To achieve that he says the administration is actively looking at suspending habeas corpus the constitutional right for people to legally challenge their detention by the establishment Such a move would be aimed at expatriates as part of the Republican president s broader crackdown at the U S -Mexico perimeter The Constitution is clear and that of syllabus 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 advised reporters outside the White House on Friday So I would say that s an option we re actively looking at Miller stated Look a lot of it depends on whether the courts do the right thing or not What is habeas corpus The Latin term means that you have the body Federal courts use a writ of habeas corpus to bring a prisoner before a neutral judge to determine if imprisonment is legal Habeas corpus was included in the Constitution as an import from English common law Parliament enacted the Habeas Corpus Act of which was meant to ensure that the king distributed prisoners when the law did not justify confining them The Constitution s Suspension Clause the second clause of Section of Article I states that habeas corpus shall not be suspended unless when in cases of rebellion or invasion the population safety may require it Has it been suspended previously Yes The United States has suspended habeas corpus under four distinct circumstances during its history Those usually involved authorization from Congress something that would be nearly impossible in the current era even at Trump s urging given the narrow Republican majorities in the House and Senate President Abraham Lincoln suspended habeas corpus multiple times amid the Civil War beginning in to detain suspected spies and Confederate sympathizers He ignored a ruling from Roger Taney who was the Supreme Court chief justice but was acting in the episode as a circuit judge Congress then authorized suspending it in which allowed Lincoln to do so again Congress acted similarly under President Ulysses S Grant suspending habeas corpus in parts of South Carolina under the Civil Rights Act of Also known as the Ku Klux Klan Act it was meant to counter violence and intimidation of groups opposing Reconstruction in the South Habeas corpus was suspended in two provinces of the Philippines in when it was a U S territory and bureaucrats were worried about the threat of an insurrection and in Hawaii after the bombing of Pearl Harbor but before it became a state in Writing before becoming a Supreme Court justice Amy Coney Barrett co-authored a piece stating that the Suspension Clause does not specify which branch of regime has the authority to suspend the privilege of the writ but majority agree that only Congress can do it Could the Trump administration do it It can try Miller suggested that the U S is facing an invasion of settlers That term was used deliberately though any effort to suspend habeas corpus would spark legal challenges questioning whether the country was facing an invasion let alone presenting extraordinary threats to citizens safety Federal judges have so far been skeptical of the Trump administration s past efforts to use extraordinary powers to make deportations easier and that could make suspending habeas corpus even tougher Trump argued in March that the U S was facing an invasion of Venezuelan gang members and evoked the Alien Enemies Act of a wartime authority he has tried to use to speed up mass deportations His administration acted to swiftly deport alleged members of Tren de Aragua to a notorious prison in El Salvador leading to a series of legal fights Federal courts around the country including in New York Colorado Texas and Pennsylvania have since blocked the administration s uses of the Alien Enemies Act for countless reasons including amid questions about whether the country is truly facing an invasion If courts are already skeptical how could habeas corpus be suspended Miller who has been fiercely critical of judges ruling against the administration advanced the argument that the judicial branch may not get to decide Congress passed a body of law known as the Immigration Nationality Act which stripped Article III courts that s the judicial branch of jurisdiction over immigration cases he commented Friday That statute was approved by Congress in and there were vital amendments in and Legal scholars note that it does contain language that could funnel certain cases to immigration courts which are overseen by the executive branch Still the greater part appeals in those cases would largely be handled by the judicial branch and they could run into the same issues as Trump s attempts to use the Alien Enemies Act Have other administrations tried this Technically not since Pearl Harbor though habeas corpus has been at the center of particular major legal challenges more just now than that Republican President George W Bush did not move to suspend habeas corpus after the Sept attacks but his administration subsequently sent detainees to Guantanamo Bay Cuba drawing lawsuits from advocates who argued the administration was violating it and other legal constitutional protections The Supreme Court ruled in that Guantanamo detainees had a constitutional right to habeas corpus allowing them to challenge their detention before a judge That led to chosen detainees being issued from U S custody