Stephen Miller says Trump admin considering suspending habeas corpus to enforce immigration crackdown

White House deputy chief of staff for policy Stephen Miller said Friday that President Donald Trump’s administration is “actively” considering suspending habeas corpus to escalate its crackdown on illegal immigration.

During his second term, Trump has signed several executive orders targeting illegal immigration, such as classifying some gangs and cartels as foreign terrorist organizations and invoking the Alien Enemies Act of 1798 to accelerate deportations of illegal immigrant gang members. A reporter asked Miller outside the White House when the Trump administration would suspend habeas corpus to tackle illegal immigration.

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“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 said. “So it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”

The Supreme Court temporarily paused the Trump administration’s efforts to use the Alien Enemies Act to deport members of the Venezuelan prison gang Tren de Aragua (TdA) in April, saying detainees must have a chance to challenge their deportations. The law gives the president the power to pursue expedited removals of foreign nationals during times of war or an invasion.

A Trump White House fact sheet published in April showed that border crossings, migrant encounters and “gotaways” all plunged by 93% or more in the first 100 days of the president’s administration.

United States District Judge James Boasberg issued a March 15 injunction ordering the Trump administration to reverse two planes carrying members of TdA to El Salvador. The judge subsequently threatened to hold the Trump administration in contempt of court for not turning the flight around.

The Supreme Court overturned Boasberg’s orders in a 5-4 decision on April 7, asserting Boasberg lacked the power to issue the injunction, but another challenge arose from Texas, where the gang members were being detained pending their deportation.

Federal Judge Fernando Rodriguez Jr., a Trump appointee, permanently blocked the Trump administration from using the Alien Enemies Act to deport foreign gang members on May 1. He ruled it was “unlawful” due to the statute historically only referring to an “organized, armed force entering the United States” to attack.

Former President Abraham Lincoln authorized the suspension of habeas corpus in April 1861 as needed to secure key transportation and supply routes in Maryland during the Civil War, according to History.com. The suspension of habeas corpus is rare as the Constitution prohibits it “unless when in Cases of Rebellion or Invasion the public Safety may require it.”

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