The Trump administration is considering suspending habeas corpus, a constitutional right that allows individuals to challenge their detention in court, as part of its efforts to expand its power to deport migrants who are in the United States illegally. White House Deputy Chief of Staff Stephen Miller stated that the administration is “actively looking at” this option, citing the Constitution’s provision that allows for the suspension of habeas corpus in cases of invasion or rebellion.

“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. “So, I would say that’s an option we’re actively looking at.” Miller argued that the US is facing an “invasion” of migrants, a term that has been used deliberately to justify the potential suspension of habeas corpus.

However, this move would likely face significant legal challenges, with many questioning whether the country is truly facing an invasion or extraordinary threats to public safety. Federal judges have been skeptical of the Trump administration’s past efforts to use extraordinary powers to make deportations easier.

The Constitution’s Suspension Clause states that habeas corpus “shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” While the US has suspended habeas corpus in the past, such as during the Civil War and after the bombing of Pearl Harbor, it would be challenging to do so today without Congressional authorization.

Miller’s comments come as the Trump administration continues to face legal battles over its immigration policies, including its use of the Alien Enemies Act of 1798 to speed up mass deportations. The administration’s efforts have been blocked by federal courts, which have questioned whether the country is truly facing an invasion.

In response to criticism from judges, Miller argued that the judicial branch may not have a say in the matter, citing the Immigration Nationality Act, which he claims strips Article III courts of jurisdiction over immigration cases. However, legal scholars note that while the statute may funnel certain cases to immigration courts, most appeals would still be handled by the judicial branch.

The Supreme Court has previously ruled on the importance of habeas corpus, including in 2008 when it ruled that Guantanamo detainees had a constitutional right to challenge their detention before a judge.