In the United States, the statement of the White House Deputy Chief of Staff Stephen Miller, dated May 9, 2025, is being actively discussed, where, at a meeting with the reporters, he made the following statement on solving migration problems.
“Well, 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. So … that’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not. At the end of the day, 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. So Congress actually passed what’s called jurisdiction stripping legislation. It passed a number of laws that say that the Article III courts aren’t even allowed to be involved in immigration cases.”
Miller suggested that the United States is facing “an invasion“ of migrants. This term was used deliberately, although any attempt to suspend the operation of habeas corpus, as will be shown later, will cause legal problems that call into question whether the country really faced such an invasion, not to mention that it poses an extreme threat to public safety.
Media reports indicate that federal judges in the United States have so far been skeptical of the Trump administration‘s past attempts to use emergency powers to facilitate deportations, and this could make the suspension of habeas corpus even tougher.
It all started in March of this year, when Donald Trump declared that the United States was facing an “invasion“ by members of Venezuelan gangs, and referred to the wartime Alien Enemies Act of 1798, which he tried to use to accelerate mass deportations.
Alleged members of the Tren de Aragua clan have been deported to a notorious prison in El Salvador, leading to a series of lawsuits. However, there was a problem with identification, since, as has already been proven, people, who were sent to El Salvador, turned out to be in no way connected with the above mentioned gang. In addition, these actions were protested by the Venezuelan government.
Federal courts across the country, including in New York, Colorado, Texas, and Pennsylvania, have since blocked the administration‘s application of the Alien Enemies Act for many reasons, including questions about whether the country was indeed facing an invasion. It should be added that there were also supporters of the Democratic Party among the judges, which highlights the political split within the United States.
As CNN reported, President Trump has been recently personally involved in discussions inside the administration over potentially suspending Habeas Corpus, He apparently mentioned this in a statement to reporters on April 30.
“There are ways to mitigate it and there’s some very strong ways,” Trump told reporters. “There’s one way that’s been used by three very highly respected presidents, but we hope we don’t have to go that route.”
Habeas corpus (Habeas Corpus Act, literally translated from Latin – “that you have the body”) is one of the codes of Anglo-Saxon law that has spread throughout the world. In short, this law protects individuals from detention or arrest without a court order. The law was passed during the short-lived English Parliament under King Charles II of England on May 27, 1679. Although there was a similar writ back in 1215. The Act of the 17th century significantly expanded the rights and freedoms of subjects of the British Crown. And the reason for its adoption was the gentry’s struggle with noble lords, in particular, with King’s brother James, the Duke of York. Supporters of the adoption of this act wanted to complicate the rule of James and even deprive him of his rights to the throne.
Later, on the basis of Habeas corpus, the principles of fair and democratic justice were established and entered into world practice: the presumption of innocence, respect for the rule of law during detention, and a quick and expeditious trial conducted with “due process“ and at the place where the offense was committed. Habeas corpus consists of 21 articles. No free man could be imprisoned without a writ of habeas corpus.
In some countries, a court order has been temporarily or permanently suspended due to a war or a state of emergency, for example, under the Habeas Corpus Suspension Act of 1794 in the United Kingdom and the Habeas Corpus Suspension Act (1863) in the United States. Nevertheless, the right to apply for a personal integrity order has long been considered a fundamental guarantee of personal freedom.
According to the National Constitutional Center, the United States has suspended Habeas corpus four times in the past – during the Civil War, during the reconstruction of South Carolina, in the Philippines during the 1905 uprising, and in Hawaii in 1941 after the bombing of Pearl Harbor by Japan during World War II.
Now, the situation with migrants in the United States has actually been equated to a state of emergency, since such discussions are already underway. At the same time, the opposition accuses the Trappists of distorting legal norms.
Thus, Steve Vladeck, a professor of law at the Georgetown University Law Center, notes that Miller’s statement is both (1) wrong; and (2) profoundly dangerous.
He makes out five basic points:
First, the Suspension Clause of the Constitution, which is in Article I, Section 9, Clause 2 is meant to limit the circumstances in which habeas can be foreclosed (Article I, Section 9 includes limits on Congress’s powers)—thereby ensuring that judicial review of detentions are otherwise available. (Note that it’s in the original Constitution—adopted before even the Bill of Rights.) I spent a good chunk of the first half of my career writing about habeas and its history, but the short version is 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.
Second, Miller is being slippery about the actual text of the Constitution (notwithstanding his claim that it is “clear”). 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 emergency itself isn’t enough.
Third, even if the textual triggers for suspending habeas corpus were satisfied, 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.
Fourth, Miller is wrong, as a matter of fact, about the relationship between Article III courts (our usual federal courts) and immigration cases. It’s true that the Immigration and Nationality Act (especially as amended in 1996 and 2005) includes a series of “jurisdiction-stripping” provisions. But most of those provisions simply channel judicial review in immigration cases into immigration courts (which are part of the executive branch) in the first instance, with appeals to Article III courts.
Fifth, and finally, Miller gives away the game when he says “a lot of it depends on whether the courts do the right thing or not, ” it sounds both a threat and a suggestion that the administration would (unlawfully) suspend habeas corpus it disagrees with how courts rule in these cases.
In other words, Vladeck accuses Miller of trying to intimidate federal judges into acquiescing in more unlawful activity by the Trump administration.
Some cases related to the deportation of migrants have already become widely known and are likely to become a precedent for further litigation and/or reforms. But in addition to the internal political factor, there is also an obvious international one, which concerns not only the country of origin of the deported persons.
Deeper reasons can be seen in the possible suspension of habeas corpus by the Donald Trump administration – the inadequacy of Anglo–Saxon law as such, since historical precedents with its suspension also point to a clear discrepancy between reality and the political rhetoric of human rights. After all, if a person has rights, then regardless of origin, skin color, religion, etc., he should be treated fairly, regardless of any political factors. This reveals not only the double standards of the West, but also the inferiority of some widespread legal norms that have entered international law.
It is obvious that the world needs to develop new standards according to the new criteria of a multipolar world order – some set of Lex Pluriversalis, but taking into account the numerous legal and ideological traditions of different peoples in different regions.
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