According to reporting published Monday, the White House weighed suspending habeas corpus rights for immigrants in the country without authorization during the first months of President Trump's second term. The details come from "Regime Change: Inside the Imperial Presidency of Donald Trump," an upcoming book by New York Times reporters Maggie Haberman and Jonathan Swan.
The report states that White House staff secretary Will Scharf authored a memo for White House chief of staff Susie Wiles in April 2025 signaling that the administration was considering pausing habeas corpus protections, which allow individuals to challenge the legality of their detention in court. The Trump administration's strict crackdown on immigration has drawn significant scrutiny, particularly after federal immigration authorities killed two U.S. citizens in Minneapolis earlier this year.
What the Right Is Saying
White House deputy chief of staff Stephen Miller told reporters at the White House more than a year ago that Trump and his team were "actively looking at" suspending habeas corpus as part of their immigration enforcement efforts. "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 time of invasion," Miller said, adding: "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."
Conservative legal scholars and administration supporters argue that the executive branch has broad authority over immigration enforcement. Some point to historical precedents where habeas corpus was suspended during national emergencies. White House officials have maintained that strict immigration enforcement is necessary for public safety and have criticized what they describe as judicial obstacles to deportation proceedings.
What the Left Is Saying
Democratic lawmakers and civil liberties advocates have raised constitutional concerns about any suspension of habeas corpus. Senator Dick Durbin (D-IL), ranking member of the Senate Judiciary Committee, said suspending habeas corpus outside of explicit constitutional circumstances "would be a fundamental assault on American values." The Constitution specifies that the privilege of habeas corpus may be suspended only "when in cases of rebellion or invasion the public safety may require it."
Organizations including the American Civil Liberties Union (ACLU) and the National Immigration Law Center have long argued that due process protections apply to all persons within U.S. territory, regardless of immigration status. "Every person detained by the government has a right to challenge that detention," an ACLU spokesperson said in a statement. Immigrant advocacy groups contend that removing habeas corpus protections would expose undocumented individuals to prolonged detention without judicial oversight.
What the Numbers Show
According to reporting from the New York Times, Scharf's memo to Wiles cited constitutional provisions allowing habeas corpus suspension "only when there is rebellion or invasion." The administration has not formally invoked either justification. Immigration courts faced a backlog of approximately 3.6 million cases as of recent federal data. The average immigration case takes more than 600 days to resolve, according to the Transactional Records Access Clearinghouse at Syracuse University.
Federal agencies made more than 270,000 arrests in fiscal year 2025 under the Trump administration's intensified enforcement priorities, according to Department of Homeland Security statistics. Immigration detention populations have fluctuated between 30,000 and 50,000 individuals annually in recent years, per federal data.
The Bottom Line
The reported consideration of suspending habeas corpus for undocumented immigrants represents a significant constitutional question that legal experts say has not been seriously pursued since the Civil War era. No formal action has been taken to implement such a suspension. The administration continues to pursue aggressive immigration enforcement while facing ongoing litigation over various executive actions. Legal scholars expect any attempt to broadly suspend habeas corpus protections would face immediate court challenges, with outcomes likely dependent on how courts characterize current immigration patterns relative to the constitutional standard of "invasion or rebellion."