Stephen Miller Peddles Dangerous Falsehoods that the Executive Has Sweeping Authority to Suspend Habeas Corpus and Defy Courts on Immigration

May 10, 2025

Top Trump advisor Stephen Miller has openly threatened to suspend habeas corpus, the Constitution’s main protection against arbitrary arrest. He then went on to say that the administration might defy all judicial review of any action the administration decides is related to immigration.

Legal scholar Steve Vladeck provides a thorough analysis.

Stephen Miller went on television Friday afternoon and made some of the most remarkable (and remarkably scary) comments about federal courts that I think we’ve ever heard from a senior White House official: …
“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. So … that’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not. At the end of the day, Congress passed a body of law known as the Immigration Nationality Act which stripped Article III courts, that’s the judicial branch, of jurisdiction over immigration cases. So Congress actually passed what’s called jurisdiction stripping legislation. It passed a number of laws that say that the Article III courts aren't even allowed to be involved in immigration cases.”
I know there’s a lot going on, and that Miller says lots of incendiary (and blatantly false) stuff. But this strikes me as raising the temperature to a whole new level—and thus meriting a brief explanation of all of the ways in which this statement is both (1) wrong; and (2) profoundly dangerous. …
Miller gives away the game when he says “a lot of it depends on whether the courts do the right thing or not.” It’s not just the mafia-esque threat implicit in this statement (“I’ll make him an offer he can’t refuse”); it’s that he’s telling on himself: He’s suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose.

In fact, this administration is already violating the requirements of habeas corpus by sending people to prison in El Salvador and resisting court orders to return them. It is what you would expect from a president who claims not to know whether he’s required to uphold the Constitution.

The Executive Watch is a project of the Institute for the Study of Modern Authoritarianism, and its flagship publication The UnPopulist, to track in an ongoing way the abuses of the power of the American presidency. It sorts these abuses into five categories: Personal Grift, Political Corruption, Presidential Retribution, Power Consolidation, and Policy Illegality. Click the category of interest to get an overview of all the abuses under it.

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