On May 9, White House Deputy Chief of Staff Stephen Miller told reporters that the Trump administration was considering suspending the right to habeas corpus—the right of a detained person to access the judicial system to challenge their detention. But most legal authorities have considered it clear that this right can be suspended only by the Congress, not the executive.
“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,” he explained.
“Look, a lot of it depends on whether the courts do the right thing or not,” he continued, suggesting that if courts don’t rule the way Trump wants them to, they will be out of the equation altogether. Without habeas corpus, a person can be detained indefinitely, without trial or other due process.
The right of habeas corpus appears in Article I, Section 9 of the U.S. Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion of the public Safety may require it.” Article I deals with the powers of the legislative branch, not the President.