Trump is ‘actively looking’ at suspending habeas corpus
Over the past few weeks, Donald Trump has put the pedal to the metal when it comes to his authoritarian assault on liberty and the Constitution in the name of safety, so it should come as no surprise to learn that he will be “actively looking” at suspending habeas corpus, thus further destroying the Fifth Amendment’s right to due process.
The announcement was made by White House Deputy Chief of Staff for Policy, and White Nationalist, Stephen Miller in a meeting with reporters (via TheHill.com):
White House deputy chief of staff Stephen Miller said Friday that President Trump and his team are “actively looking at” suspending habeas corpus as part of the administration’s immigration crackdown.
“Well, 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 told reporters at the White House.
“So, it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”
Miller’s comments come amid a broader discussion over the due process protections afforded to migrants under the Fifth Amendment to the Constitution. (Emphasis mine)
The writ of habeas corpus has been suspended only four times, according to the National Constitution Center: During the Civil War, in parts of South Carolina overrun by the Ku Klux Klan during reconstruction, in two provinces in the Philippines in 1905, and in Hawaii after the bombing at Pearl Harbor.
Those who know a little bit about the Constitution — which leaves out most of the Republican Party — have pointed out that Trump lacks the authority to suspend habeas corpus; only Congress has that authority. They also point out how suspending it is a particularly improper course of action when there is no invasion or rebellion as spelled out in Article I, Section 9, Clause 2:
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.
As I documented in a piece I wrote in November 2024, Trump’s immigration “emergency” and his constitutionally questionable deportation plan — along with a myriad of other extreme police state policies — come directly from the Project 2025 agenda provided by the Heritage Foundation, a 900-page blueprint laying out Trump’s first 180 days that expands presidential power in a way that can only be described as the beginnings of a police state.
On the subject of building a police state, John Whitehead wrote a great piece last week describing how a recent executive order released by Dear Leader does exactly that by not only expanding policing — but also institutionalizing repression, setting us squarely on the road to martial law and destroying the right to due process.
Officially titled “Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens,” Trump’s order contains tough-on-crime rhetoric cloaked in patriotic language and the promise of safety — the language used by every strongman throughout history who’s ever ruled by force. Using his pen and phone — ala Barack Obama — Trump has laid the groundwork for a stealth version of martial law by:
- Expanding police powers and legal protections
- Authorizing the DOJ to defend officers accused of civil rights violations
- Increasing the transfer of military equipment to local police
- Shielding law enforcement from judicial oversight
- Prioritizing law enforcement protection over civil liberties
- Embedding DHS and federal agents more deeply into local policing
Why would Trump settle for a stealth version of martial law? Because his first attempt at declaring martial law has failed . . . at least for now. As I documented last month, Trump’s militarization of our southern border was intended to put things in place for an eventual martial law declaration.
On Inauguration Day, Trump issued an executive order declaring a national emergency on the southern border that required the Secretary of Defense (Pete Hegseth) and the Secretary of Homeland Security (Kristi Noem) to provide a joint report updating conditions at the border along with their recommendations on whether the invocation of the Insurrection Act might be necessary.
“Within 90 days of the date of this proclamation, the Secretary of Defense and the Secretary of Homeland Security shall submit a joint report to the President about the conditions at the southern border of the United States and any recommendations regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”
Hegseth and Noem refused to recommend invoking the Insurrection Act due to a reduction in border crossings.
Since taking office in January 2025, Trump has moved systematically to remove all accountability by law enforcement, including in the area of immigration:
- Terminating the National Law Enforcement Accountability Database
- Halting DOJ investigations into abusive police departments
- Expanding immigration enforcement while eliminating oversight
- Dismissing internal watchdogs at DOJ and DHS
- Weakening civil rights tools and body camera requirements
- Suspending or eliminating consent decrees nationwide
All of this has occurred without congressional debate, judicial review, or constitutional scrutiny. Through it all, Trump has emboldened police forces to act with near impunity, reinforcing a trend long embraced by powerful police unions, bureaucratic cronyism, and laws providing for qualified immunity that shield misconduct from public consequence.
If Trump suspends habeas corpus, we will find ourselves living in an America where our God-given, constitutionally protected rights exist in name only because:
“Suspending habeas corpus would suspend the right for everyone, not just for undocumented people. [That means] that Trump is thinking about asserting the right to throw Americans in prison while giving them no opportunity to use the courts to get out.” ~ James Surowiecki, The Atlantic
“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 because if there is no due process, no fair hearing, you have no opportunity to object.” ~ Rep. Jamie Raskin (D-MD), Top Democrat on the House Judiciary Committee
In practice, suspending habeas corpus means we will be ruled a quasi-military bureaucracy empowered to:
- Detain us without trial
- Punish political dissent
- Seize personal property under civil asset forfeiture
- Classify critics of government as extremists or terrorists
- Conduct mass surveillance on the populace
- Raid homes in the name of “public safety” without a warrant
- Use deadly force at the slightest provocation
Even if the suspension of habeas corpus ends up in Congress, don’t look for the Trumpist Republicans in the majority at the moment to do their job. In the name of all things Trump, the Republican Party has repeatedly proven its willingness to abdicate its role as a constitutional check on executive power for a seat at his table.
David Leach is the owner of the Strident Conservative and the author of The New Axis of Evil: Exposing the Bipartisan War on Liberty. He holds people of every political stripe accountable for their failure to uphold conservative values, and he promotes those values instead of political parties.
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