White House Seriously Weighed Suspending Habeas Corpus, New Reporting Shows
The thing that stopped a president from switching off one of our oldest legal protections last year was not a court, and it was not Congress. It was a memo. A White House lawyer sat down, typed out why the idea was illegal, and sent it up the chain. That is how close we came.
According to recent reporting by The New York Times, drawn from a forthcoming book by Maggie Haberman and Jonathan Swan, the Trump administration did not just float suspending habeas corpus as a talking point. It debated the idea seriously. Habeas corpus is the right that lets anyone the government detains demand to know why and contest it before a judge. Strip it away, and a person can be jailed indefinitely with no hearing, no explanation, and no way out. It is the difference between a country with prisons and a country with disappearances.
The push came from Deputy Chief of Staff Stephen Miller, who told reporters in May 2025 that suspending the writ was, in his words, an option the administration was actively looking at. His theory was that illegal immigration counts as an “invasion,” and that the Constitution allows the writ to be suspended during one. The suspension clause does sit in Article I, Section 9, and it does mention invasion. Miller’s problem is everything around those words.
Start with who holds the power. That clause lives in Article I, the part of the Constitution that governs Congress, not the president. According to the National Constitution Center, the writ has been suspended only four times in our history, and in all but one of those cases Congress authorized it first. The exception was Abraham Lincoln during the Civil War, and even he went back to Congress for approval afterward. No president has ever shut off habeas corpus alone and made it stick.
Then there is that word, “invasion.” A month before Miller spoke, the Supreme Court ruled in April 2025 that migrants the administration wanted to deport under the Alien Enemies Act were entitled to due process. The justices were unanimous that those detainees had a right to challenge their removal in court through habeas petitions. Lower court judges, including one Trump appointed, had already rejected the claim that ordinary immigration amounts to the kind of armed invasion the law contemplates.
The person who said all of this out loud inside the building was Will Scharf, the White House staff secretary and a conservative attorney. In a memo dated April 29, 2025, he warned that courts have almost uniformly held that suspending habeas requires congressional action, and that going it alone would collapse in litigation. Later, when the idea shifted to invoking the Insurrection Act to put soldiers on American streets, Scharf pushed back again in an October memo, calling it an emergency tool of last resort that would invite the same legal disaster.
That second fight was not theoretical. According to the Times, the Insurrection Act resurfaced in January after federal agents fatally shot Alex Pretti, an intensive care nurse, during an immigration operation in Minneapolis, as protests spread across Minnesota. Accounts of the shooting still conflict. What is not in dispute is that someone in the room wanted to answer unrest by sending in the Army.
Here is the part that should keep us up at night. The safeguard worked, but it was internal, informal, and entirely dependent on the right person writing the right memo at the right moment. Rights that survive only because a staffer objected are not secure. They are lucky.
So pay attention. Ask your representatives, on the record, whether they would ever vote to suspend habeas corpus for anyone. Make them answer before the question stops being hypothetical. Go beyond the headlines…
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