Outrage against US government’s constitutional attack to eliminate habeas corpus as in World War II

That the Donald Trump administration is defying the laws and the Constitution to realize its dream of carrying out the largest deportation in history is nothing new, but the Republican’s latest scheme has once again set off alarm bells. The most recent threat to the Constitution that the executive branch is exploring is the elimination of habeas corpus, which guarantees due judicial process to prevent abuses of power.

White House Deputy Chief of Staff Stephen Miller said Friday that the president is looking for ways to expand his legal power to deport migrants. To achieve this, he said the administration is considering suspending habeas corpus, the constitutional right of individuals to go to court to legally challenge their detention by the government. “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. “I would say that’s an option we’re actively looking at.”

“I know there’s a lot going on, and that Miller says lots of incendiary (and blatantly false) stuff. But this strikes me as raising the temperature to a whole new level,” warned Steve Vladeck, a Georgetown University law professor, on Substack.

The Constitution allows habeas corpus to be suspended only when “in cases of rebellion or invasion, the public safety may require it.” The last time this occurred was in 1941, following the attack on Pearl Harbor during World War II.

Habeas corpus was included in the Constitution as an import from English common law. In 1679, the law was passed to ensure that King Charles II would release prisoners when their confinement was unjustifiable. On the few occasions it has been suspended in the United States, it has generally been with the authorization of Congress, something that would be nearly impossible today, given the narrow Republican majorities in the House of Representatives and the Senate.

Outrage and criticism on political and social media have been swift. Minnesota Senator Amy Klobuchar asserted on the social media platform X that “Congress is not going to reverse habeas corpus — and no, the president can’t do it himself.” Lee Kovarsky, a law professor at the University of Texas and an expert on habeas corpus, warned on CNN that if this guarantee were suspended, it would be a “national historical disaster.” “The executive could just detain you, and there would be no recourse,” he said. “Obviously they would do it to try to detain certain non citizens, but there’s no reason why it’s limited to them.”

The Trump administration has repeatedly used the term “invasion” to refer to the influx of migrants in recent years. Seizing on this, it has used the Alien Enemies Act of 1798 to deport hundreds of Venezuelan and Salvadoran migrants, whom it has accused of belonging to the Tren de Aragua and MS-13 criminal gangs, to the maximum-security Cecot prison in El Salvador without due process. The Supreme Court has blocked the law’s application, and courts in New York, Colorado, Texas, and Pennsylvania have also ruled against its use.

Lack of necessary resources

Despite numerous raids across the country, which have resulted in the deportation of some 142,000 people according to government data, the administration lacks the resources necessary to achieve the goal of deporting around one million undocumented migrants annually.

Trump wants the Department of Homeland Security (DHS) to hire 20,000 more agents to assist with mass deportations. The recruiting of these agents would be done through local and state agencies, as well as by bringing in former agents and members of other federal agencies. The order is included in Project Homecoming, which includes both rewards and threats to migrants to get them to self-deport, thus making the administration’s job easier.

The new hires would join the 6,000 ICE (Immigration and Customs Enforcement) agents who are making the arrests.

Local and state assistance has been deemed essential since the announcement of the largest deportation in U.S. history, which is why the government has promoted 287g agreements, which oblige local authorities to cooperate with ICE. As of May 9, the immigration agency has signed 531 such agreements in 38 states, according to official data. The most productive collaboration occurred late last month in Florida, where local police helped ICE detain more than 1,100 migrants across the state.

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