Trump administration proposed suspending habeas corpus for undocumented migrants
‘The New York Times’ reveals a memorandum warning of plans to remove the constitutional guarantee for detainees
Since Donald Trump began his second term, the administration has cracked down on the media on numerous occasions. With the goal of carrying out the largest deportation campaign in history, the government has defied court orders, detained people who committed no crimes, separated families, and sent detainees to third countries without due process. On Monday it emerged that the Republican government had considered a serious constitutional breach: eliminating the habeas corpus right for migrants found in the country without authorization.
That right allows petitioners to force the government to justify their detention before a judge and is enshrined in Article I of the Constitution. It dates back centuries and is essential to prevent arbitrary imprisonment — a right that has taken on added importance amid the administration’s crackdown on immigration, which has put hundreds of thousands of people who did not commit crimes into detention centers run by the U.S. Immigration and Customs Enforcement (ICE).
The Trump administration’s intention to eliminate it was made public by The New York Times. Journalists at the U.S. outlet obtained a secret memorandum sent by Will Scharf, an ultra‑conservative lawyer who served as White House staff secretary, to chief of staff Susie Wiles. Dated April 29, 2025, Scharf warned in his message of the gravity of the proposal, because suspension of habeas corpus is authorized only in cases of invasion or rebellion and only Congress may do so.
“Even where Congress has explicitly suspended habeas corpus rights, the Supreme Court has held that some alternative process must be provided to defendants, with procedural safeguards akin to a habeas corpus action,” Scharf wrote, explaining that this legal remedy prevents “governmental actors from detaining, imprisoning or executing individuals arbitrarily.”
The proposal to eliminate habeas corpus for undocumented migrants came from one of the people who has had the most influence on Trump’s anti‑immigration campaign: White House deputy chief of staff Stephen Miller, the architect of the administration’s most aggressive tactics against migrants.
Miller’s tactics — which have sought strategies allowing Trump to accumulate power while evading laws — alarmed other White House officials, who, according to the NYT, called the proposed suspension of habeas corpus “insane.” The president raised the idea in connection with the case of Kilmar Abrego García, the Salvadoran who fought his deportation in court — a deportation the administration later acknowledged was carried out in error. “There’s one way that’s been used by three very highly respected presidents,” the NYT reported him saying during a cabinet meeting, referring to options for bypassing the courts in the case. He later rejected using the idea in Abrego García’s case.
The Republican had asked for information on previous occasions when the privilege of habeas corpus had been suspended. It has only happened four times in U.S. history, all during wartime or instances of armed rebellion. The most recent instance was after the attack on Pearl Harbor.
“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 justified. “So it’s an option we are actively looking at. A lot of it depends on whether the courts do the right thing or not.” In recent months, without fully abolishing the right, the government has circumvented detainees’ right to appear before a judge to defend their cases and seek release on bond.
41,000 lawsuits
As a result, federal courts are facing a flood of immigration‑related lawsuits, more than at any other time in history. Between April 2025 and March 2026 more than 41,000 cases were filed, according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University (New York), a data research center. In March alone 9,911 new suits were filed in federal courts, with no sign the trend will reverse.
Habeas corpus petitions multiplied by 85 over the last year. A total of 82 of the 90 federal judicial districts in the United States recorded such filings challenging ICE’s detention of migrants.
A federal appeals court ruled in April that the Trump administration cannot hold immigrants in detention without giving them the right to seek bond. The administration appealed to the Supreme Court, and the high court announced on Monday that it will review the appeal. The court is expected to hear arguments in the case during its next term, which begins in October.
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