Stephen Miller, a senior adviser to President Donald Trump, told reporters on Friday that the administration was actively exploring the possibility of eliminating due process protections for undocumented immigrants in the country.
Speaking outside the White House, Miller said, “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 at a time of invasion. So I would say that’s an action we’re actively looking at.”
He added that much would depend on how the judicial system responds. “A lot of it depends on whether the courts do the right thing or not,” he said, without elaborating on what specific court actions would be considered the “right thing.”
The White House did not immediately offer clarification on Miller’s statements. It remained unclear whether he was referring to a particular group of undocumented immigrants or to all individuals who had entered the United States without authorization. The administration also declined to explain what Miller meant by calling on courts to “do the right thing.”
Miller continued his criticism of the judiciary, asserting that courts had overstepped their bounds in immigration cases. He said, “The courts aren’t just at war with the executive branch; the courts are at war, these radical rogue judges, with the legislative branch as well too. So all of that will inform the choices the president ultimately makes.”
Trump has frequently expressed his irritation with the legal protections granted to immigrants, arguing that constitutional due process provisions were obstructing his immigration agenda. In an interview that aired on NBC News’ “Meet the Press,” Trump voiced his frustration bluntly: “I was elected to get them the hell out of here, and the courts are holding me from doing it.”
During the interview, host Kristen Welker cited the Fifth Amendment of the U.S. Constitution, which states that “no person” shall be “deprived of life, liberty, or property, without due process of law.” She also noted that the Supreme Court has long upheld that noncitizens are entitled to certain fundamental rights. However, Trump responded by saying the protections were burdensome and slow.
“I don’t know. It seems — it might say that, but if you’re talking about that, then we’d have to have a million or 2 million or 3 million trials,” he said. Trump also claimed that many of those the administration was targeting for deportation included “murderers” and “drug dealers.”
Welker pressed further, asking Trump whether he believed he was required to uphold the Constitution. Trump responded ambiguously: “I don’t know. I have to respond by saying, again, I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said.”
There is a clause in the U.S. Constitution that allows for the suspension of habeas corpus during times of rebellion or invasion. Specifically, it states: “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.”
Trump previously asserted that the country was facing an invasion in March when he invoked the Alien Enemies Act to transfer suspected members of the Venezuelan gang Tren de Aragua to a prison facility in El Salvador. That act, which has rarely been used, permits the president to detain nationals of hostile countries during times of conflict.
In the related presidential proclamation, the administration claimed the gang “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” However, federal judges in three separate states disagreed. They ruled that the criminal activities of the Tren de Aragua gang did not meet the legal definition of an invasion.
To date, the Supreme Court has not issued a definitive ruling on whether the gang’s activities qualify as an invasion. However, the court recently ruled that individuals targeted for deportation are still entitled to due process under the law. In that decision, the justices stated, “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
Legal scholars have noted the extraordinary nature of suspending habeas corpus. In an essay for the National Constitution Center, then-judge and current Supreme Court Justice Amy Coney Barrett, along with attorney Neal Katyal, wrote, “A suspension is temporary, but the power it confers is extraordinary. When a suspension is in effect, the president, typically acting through subordinates, can imprison people indefinitely without any judicial check.”
Their essay explained that habeas corpus, a fundamental protection against arbitrary imprisonment, has been suspended only four times in U.S. history. One of the most significant examples occurred during the Civil War when President Abraham Lincoln suspended the writ throughout the country. The most recent instance took place in Hawaii following the Japanese attack on Pearl Harbor in 1941.
Miller’s comments, and Trump’s willingness to consider sweeping action against undocumented immigrants, reflect a broader theme within their immigration policy: that traditional constitutional safeguards should not impede what they see as urgent action to secure the country’s borders. Though such proposals are almost certain to face legal challenges, they continue to generate intense debate over the limits of executive authority and the rights of noncitizens within the U.S. legal system.
Whether the Trump team would be able to suspend habeas corpus during peacetime remains legally uncertain. But their interest in invoking that constitutional provision, based on a perceived invasion, shows a growing determination to test the boundaries of presidential power in immigration enforcement.
The coming months are likely to see this constitutional debate intensify, especially as courts continue to push back on executive attempts to bypass due process requirements. Meanwhile, critics argue that efforts to weaken these protections could undermine the rule of law. Still, for Trump and Miller, the goal remains unchanged: speeding up mass deportations by removing legal barriers.