The Trump administration might suspend immigrants’ constitutional right to challenge their detention if the courts don’t start cooperating, White House deputy chief of staff Stephen Miller said Friday.
“That’s an option we’re actively looking at,” The New York Times quoted Miller as saying. “A lot of it depends on whether the courts do the right thing or not.”
The legal procedure, known as habeas corpus, can be suspended “in cases of rebellion or invasion” that threaten public safety, according to the Constitution.
Trump has tried to paint America as under attack from immigrants, but it’s unclear if he can legally use this route to deport them. Habeas corpus has been used before, but “only in times of actual war or actual invasion, narrowly defined,” Ilya Somin, a professor of law at George Mason University, told CNN.
Additionally, the Constitution “is almost universally understood to authorize only Congress to suspend habeas corpus,” Stephen Vladeck, a law professor at Georgetown University, told The Times.
“The only reason why they would do this is because they’re losing” in court, he said.
Trump has railed against federal judges who have halted his aggressive approach. He has ignored a Supreme Court ruling that directed him to find a way to return Kilmar Abrego Garcia, an immigrant who was mistakenly sent to a notorious El Salvador prison. In a separate ruling, the Supreme Court blocked Trump from using the rarely invoked Alien Enemies Act to deport Venezuelans. Earlier this month, a Trump-appointed judge ordered all deportations in his Texas district to stop. Judge Fernando Rodriguez Jr., said the presence of Venezuelan gang members in the country can’t be described as an “invasion” or “predatory incursion.”
Trump told NBC’s “Meet the Press” on Sunday that he didn’t know whether noncitizens in the U.S. are entitled to due process, as the Fifth Amendment states.
“I don’t know. It seems — it might say that, but if you’re talking about that, then we’d have to have a million or 2 million or 3 million trials,” he said. “We have thousands of people that are — some murderers and some drug dealers and some of the worst people on Earth.”
“I was elected to get them the hell out of here, and the courts are holding me from doing it,” he added.
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