The Trump administration is exploring the suspension of habeas corpus, a constitutional right allowing individuals to challenge detention in court, to accelerate immigration enforcement, raising concerns about civil liberties and drawing comparisons to President Abraham Lincoln’s controversial suspension during the War Between the States. The proposal, under serious discussion, has sparked sharp legal objections and revived debates about executive power, with some likening Trump’s approach to Lincoln’s criticized actions.
Stephen Miller, White House deputy chief of staff, confirmed on Friday that the administration is “actively looking at” suspending habeas corpus, citing the Constitution’s allowance during an “invasion.” “A lot of it depends on whether the courts do the right thing or not,” Miller told reporters, accusing “radical, rogue judges” of waging a “judicial coup” against the executive and legislative branches. He claimed the 1965 Immigration and Nationality Act strips courts of immigration jurisdiction, a view legal experts dispute. President Donald Trump, personally involved in the talks, alluded to bypassing court injunctions against his deportation policies, stating on April 30, “There are ways to mitigate it and there’s some very strong ways,” referencing historical presidential actions.
The move aims to detain migrants without court challenges, building on Trump’s use of the 1798 Alien Enemies Act to deport alleged Venezuelan gang members to El Salvador. Federal judges, including a Trump appointee, have rejected the administration’s “invasion” claim, blocking deportations of over 200 Venezuelans and students like Rümeysa Öztürk and Mahmoud Khalil, detained for anti-Israel or pro-Palestinian writings. The Supreme Court recently affirmed that Alien Enemies Act detainees must receive notice to seek habeas relief before removal, upholding due process rights.
Trump has voiced frustration with these protections. “I was elected to get them the hell out of here, and the courts are holding me from doing it,” he told NBC’s Kristen Welker on “Meet the Press,” questioning the need for “millions” of trials for deportees, including “murderers” and “drug dealers.” When pressed on the Fifth Amendment’s due process clause, Trump deferred to his lawyers. The administration is also considering labeling suspected cartel and gang members as “enemy combatants” to simplify detention, further challenging judicial oversight.
Legal scholars argue the proposal is unconstitutional. “Essentially everything Miller says about suspending habeas corpus…is wrong,” said CNN analyst Elie Honig, noting the Constitution limits suspension to “rebellion or invasion” threatening public safety. Georgetown University’s Steve Vladeck called Miller’s remarks a “threat” to courts, emphasizing that only Congress can suspend habeas corpus. “It’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose,” Vladeck wrote. Marc Elias told MSNBC, “Congress has the authority to suspend habeas corpus—not Stephen Miller, not the president.” Ilya Somin of George Mason University noted courts have consistently rejected immigration as an “invasion.”
Chief Justice John Roberts defended judicial independence on May 7, stating the judiciary, as a coequal branch, can “check the excesses” of the president. Rep. Jamie Raskin, a Maryland Democrat, warned, “If Donald Trump can sweep noncitizens off the street and fly them to a torturer’s prison in El Salvador with no due process, he can do it to citizens too.” A Democratic aide dismissed Miller’s legal expertise, saying, “No one in their right mind would take his advice seriously.”
Some Trump supporters defend the president’s authority to suspend habeas corpus to expedite deportations. Conservative commentator Charlie Kirk, responding to The Lincoln Project’s criticism of the proposal, noted on X, “The Lincoln Project is outraged about a president potentially limiting habeas corpus in response to a national emergency. Who’s gonna tell them?”—highlighting Lincoln’s own suspension. Political commentator Rogan O’Handley argued on X that “10-20 million illegal aliens…counts as an invasion” and urged Trump to “suspend the writ asap” to prevent America’s collapse under future Democratic rule.
While some critics challenge Trump’s immigration policies on constitutional grounds, others in the Christian Reconstruction movement argue for governance rooted in biblical law. Luke Saint, president of Future of Christendom and author of The Sound Doctrine of Theocracy, exemplifies this view, asserting that the civil magistrate lacks biblical authority to regulate immigration. Saint argues that a theocratic system, by exalting righteousness and punishing wickedness, would naturally deter nefarious immigrants while welcoming those seeking to live righteous lives. In recent social media comments, Saint critiqued Christian nationalists who prioritize immigration over issues like sexual perversion and abortion, stating, “In the Bible, God does not judge a nation because hordes of heathens have invaded…This is a symptom of a greater problem…God judges the nations for things like sexual perversion and child sacrifice. If we stopped the child sacrifice, I promise you, the hordes of heathens will stop invading.” He views borders as the domain of private citizens and warns that immigration controls distract from addressing internal moral decay.
Historically, habeas corpus has been suspended four times: during the War Between the States, against the Ku Klux Klan in 1870s South Carolina, in the Philippines in 1905, and in Hawaii post-Pearl Harbor. Some scholars, like Thomas DiLorenzo in The Real Lincoln, criticize Lincoln’s actions as dictatorial, arguing he unconstitutionally suppressed civil liberties by suspending habeas corpus and denying states’ rights to secede, a principle supported by the Declaration of Independence and founders like Thomas Jefferson and James Madison. Lincoln’s 1861 suspension in Maryland, one of the most notable, offers a striking parallel. Facing Confederate sympathies in a state surrounding Washington, D.C., Lincoln suspended habeas corpus to secure the capital, ordering arrests of Baltimore’s mayor, police chief, newspaper editors, and two dozen legislators, as historian David Stewart documented. John Merryman, a secessionist detained in Baltimore, challenged his detention, prompting Chief Justice Roger Taney to rule in Ex parte Merryman that only Congress could suspend the writ. Lincoln justified his suspension under Article I, Section 9, citing rebellion, and ignored Chief Justice Taney’s ruling that only Congress could suspend habeas corpus. To prevent Maryland’s secession, he later reduced arrests, easing the policy’s intensity.
The Constitution requires Congressional approval to suspend habeas corpus, a limit pundits like Neal Katyal and Justice Amy Coney Barrett emphasize applies only in dire emergencies like rebellion or invasion. As courts challenge Trump’s immigration policies, the debate over executive power and civil liberties continues, echoing Lincoln’s controversial precedent.
