The plan was dropped only after White House Staff Secretary Will Scharf outlined the legal pitfalls it faced.
Because illegal immigration has been described as an “invasion,” Deputy White House Chief of Staff Stephen Miller told reporters in May 2025 that the administration was actively weighing a move to suspend the writ of habeas corpus to accelerate its broad deportation campaign. Recent reporting by The New York Times shows that his remark reflected a serious internal debate about whether the government could unilaterally override the longstanding right of individuals in government custody to challenge their detention in court.
That moment is troubling because it highlights the Trump administration’s casual disregard for civil liberties. Yet it is also somewhat reassuring, since Miller’s audacious idea was ultimately stopped by objections from White House Staff Secretary Will Scharf, a conservative lawyer who explained why it could not stand legally.
Miller was correct that allowing detainees to pursue judicial review makes ejecting unwanted foreigners more difficult. But he was mistaken in thinking that President Donald Trump could bypass that requirement through executive action alone.
Only a month earlier, the Supreme Court had issued a unanimous decision holding that alleged Venezuelan gang members detained under the Alien Enemies Act (AEA) possessed a due process right to file habeas corpus petitions in the district where they were held. Foreign students had similarly used such petitions to challenge the assertion that they were “subject to removal” because their political views ran counter to U.S. foreign policy interests.
Miller believed he had a workaround for the procedural hurdle. “The Constitution is clear,” he argued. “The privilege of the writ of habeas corpus can be suspended in a time of invasion.”
The Constitution does say “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.” But as the litigation over Trump’s use of the AEA demonstrated, unauthorized immigration does not fit the Framers’ definition of an “invasion.”
Another hurdle for Miller: The power to suspend habeas corpus has long been understood as residing with Congress, not the president. “This is clear from the Constitution’s text and structure,” notes William & Mary law professor Jonathan Adler. “The suspension clause is in Article I, section 9,” which includes “several enumerated constraints on legislative power.”
Scharf emphasized that point in an April 2025 memo to White House Chief of Staff Susie Wiles, noting that “the courts have almost uniformly held that suspension of habeas corpus rights requires Congressional action.” He also explained that previous suspensions had all been responses to wars or armed rebellion.
The memo underscored the importance of the principle Miller claimed could be erased by a presidential stroke of the pen. “The history of habeas corpus dates back to the very dawn of English common law,” Scharf wrote.
“Denial of habeas corpus rights was a key grievance underlying the American Revolution,” Scharf added, “and the right to petition the federal courts for habeas review dates to the beginning of the Republic. It functions to prevent government actors from detaining, imprisoning, or executing individuals arbitrarily.”
Scharf also dismissed Miller’s proposal that Trump use the antiquated and dangerously vague Insurrection Act in response to demonstrations against his immigration crackdown. In an October 2025 memo to Wiles, Scharf described the Insurrection Act as “a break-the-glass exception to the traditional, general prohibition on the use of the military in the domestic sphere.”
Scharf said “most legal analysts agree” that the statute grants the president “exceptionally broad” and “essentially unreviewable” powers. But he warned that invoking it would likely trigger vigorous litigation, potentially erasing any advantage in terms of the flexibility it was supposed to provide the President.
As with Miller’s idea of suspending habeas, Scharf’s measured caution ultimately prevailed. Fortunately for the public, it seems the Trump administration still has advisers who recognize the downsides of such proposals.
© Copyright 2026 by Creators Syndicate Inc.
