‘Factually and legally nuts’: Trump Admin flirting with suspending due process has legal scholars seeing red

The Trump administration’s discussion of possibly suspending the writ of habeas corpus has caused a major backlash from legal experts and raised serious concerns. The White House is looking into this possibility as part of its broader deportation efforts, claiming there is an “invasion” happening at the southern border.

This argument is being used to support actions like deporting Venezuelan men accused of being gang members under the 1798 Alien Enemies Act. As reported by NBC, Deputy Chief of Staff Stephen Miller openly admitted that the administration is considering suspending habeas corpus, pointing to parts of the Constitution allowing for suspension during an invasion or rebellion.  

This announcement has been strongly criticized by constitutional law scholars. Many experts argue that only Congress has the power to suspend habeas corpus, referring to Article I of the Constitution. According to MSNBC, even a constitutional law professor at Georgetown University described Miller’s statement as “factually and legally nuts.”

Trump wants to remove Habeas Corpus

There was a 2004 Supreme Court ruling where Justice O’Connor clearly stated that only Congress can suspend habeas corpus. The late Justice Scalia also supported this view, stating that even during a rebellion, the executive branch cannot arrest citizens without charges on its own.  

Some see the administration’s actions as an effort to bypass legal limits and weaken the power of the judicial branch. Miller’s comments, calling judges “Marxist” and accusing them of a “judicial coup,” have added to the controversy.

Republican responses have mostly avoided taking a clear position. Senator Barrasso said he did not think the issue would come before Congress, expressing trust that the President would follow the law, per Politico. He refused to say how he would vote if the Senate were asked to approve a suspension.

Representative McCaul admitted that suspending habeas corpus would be an “extreme measure” and suggested that the courts should decide whether the situation qualifies as a state of war. This contrasts with multiple court rulings rejecting the administration’s claim of an “invasion,” which the President continues to repeat despite those rulings.  

The possibility of detaining people without charges and preventing them from challenging their imprisonment does not sound like anything we’ve fought to preserve. There are also fears that such measures could start with immigrants but later be used against other groups.