Trump team mulls suspending the constitutional right of habeas corpus to speed deportations. Can it?

Deputy Chief of White HouseStephen Millersays the presidentDonald TrumpSearch for ways to expand its legal power to expel migrants who are illegally in the United States. To achieve this, he says that the administration “actively considers” the suspensionhabeas corpusTHEconstitutional lawSo that people legally contest their detention by the government.

Such a decision would target migrants as part of the Republican Presidentbroader repressionon the American-mexican border.

“The Constitution is clear, and it is of course the supreme law of the country, that the privilege of the brief of Habeas Corpus can be suspended at a time of invasion,” Miller told journalists outside the White House on Friday.

“So, I would say that this is an option that we are actively examining,” said Miller. “Listen, it depends largely, whether the courts do the right thing or not.”

What is Habeas Corpus?

The Latin term means “that you have the body”. Federal courts use a brief from Habeas Corpus to bring a prisoner before a neutral judge to determine if the imprisonment is legal.

Habeas Corpus was included in the Constitution as the import of the English Common. The Parliament promulgated the Habeas Corpus law of 1679, which was intended to guarantee that the king released the prisoners when the law did not justify confining them.

The ConstitutionSuspension clauseThe second clause of article 9 of article I indicates that the Habeas Corpus “will not be suspended, unless, in the event of rebellion or invasion, public security may require it.”

Has it been suspended previously?

Yes. The United States has suspended Habeas Corpus in four separate circumstances during its history. Those who generally involved the authorization of the Congress, something that would be almost impossible today – even at the request of Trump – given close republican majorities in the Chamber and the Senate.

President Abraham Lincoln suspended Habeas Corpus several times in the middle of the civil war, from 1861 to have suspicious spies and Confederate sympathizers. He ignored a decision by Roger Taney, who was the chief judge of the Supreme Court but acted in the case as a circuit judge. The congress then authorized to suspend it in 1863, which allowed Lincoln to do it again.

The Congress acted in the same way under President Ulysses S. Grant, suspending Habeas Corpus in certain parts of southern Carolina under the civil rights law of 1871. Also known as Ku Klux Klan Act, it was to counter the violence and intimidation of groups opposing the reconstruction in the south.

Habeas Corpus was suspended in two provinces of the Philippines in 1905, when it was an American territory and the authorities were concerned about the threat of an insurrection, and in Hawaii after the bombing of Pearl of 1941, but before becoming a state in 1959.

Write before becoming judge of the Supreme Court,Amy CONEY BARRETTco-writtena songDeclaring that the suspension clause “does not specify which branch of the government has the power to suspend the privilege of the brief, but most agree that only the congress can do it.”

Could Trump administration do it?

He can try. Miller suggested that the United States faced an “invasion” of migrants. This term was used deliberately, although any effort to suspend the Habeas Corpus would arouse legal challenges wondering if the country was confronted with an invasion, and even less to present extraordinary threats to public security.

Until now, federal judges have been skeptical of the Trump administration's past efforts to use extraordinary powers to facilitate deportations, which could make the Habeas Corpus suspension even more difficult.

Trump argued in March that the United States faced an “invasion” of members of the Venezuelan gang and spoke of theAlien Enemies Act of 1798A war authority that he tried to use to accelerate mass deportations.

Its administration acted to quickly expel the alleged members ofTren of Araguato a notoriousPrison in El Salvadorleading to a series of legal fights.

Federal courts across the country, including in New York, Colorado, Texas and Pennsylvania, have sinceblocked administration usesAmong the extraterrestrial enemies Act for many reasons, especially in the midst of questions about the question of whether the country is really faced with an invasion.

If the courts are already skeptical, how could it be suspended by Habeas Corpus?

Miller, who wasfiercely criticalJudges who governed against the administration have advanced the argument that the judiciary may not be able to decide.

“The congress adopted a corpus of law known as the law on the nationality of immigration which stripped the courts of Article III, it is the judiciary of jurisdiction on immigration affairs,” he said on Friday.

This law was approved by Congress in 1952 and there were important amendments in 1996 and 2005. Legal specialists note that it contains a language which could channel certain cases to the immigration courts, which are supervised by the executive power.

However, most of the calls in these cases would be largely dealt with by the judicial branch, and they could meet the same questions as Trump's attempts to use the extraterrestrial enemy law.

Have other administrations tried this?

Technically not since Pearl Harbor, although Habeas Corpus has been at the center of certain major legal challenges more recently than that.

Republican president George W. Bush did not move to suspend Habeas Corpus after the September 11 attacks, but his administration later sent prisoners to Guantanamo Bay, Cuba, pulling prosecution against defenders who argued that the administration raped IT and other legal constitutional protections.

The Supreme Court judged in 2008 that the prisoners of Guantanamo had a constitutional right to the Habeas Corpus, allowing them to challenge their detention before a judge. This led to the release of certain prisoners of the American guard.

This story was initially presented on Fortune.com