Trump team wanted to suspend Constitutional right to deport more immigrants, memo reveals
Frustrated with mounting losses in court, key officials in Donald Trump’s administration were seriously considering the suspension of a centuries-old constitutional right to speed up the president’s anti-immigration campaign to deport tens of thousands of people from the country.
An explosive secret memo last year appears to address concerns among White House officials about a plan to suspend habeas corpus, a fundamental due process right enshrined in the constitution to allow those detained by the government to challenge their imprisonment.
The memo — obtained by Maggie Haberman and Jonathan Swan of The New York Times for their forthcoming book Regime Change: Inside the Imperial Presidency of Donald Trump — was drafted by White House staff secretary Will Scharf, who wrote that the suspension of habeas corpus rights “has only been done in the direst of circumstances” in only a handful of times in U.S. history.
Dismissing a constitutional right to deport more people would be “insane,” White House aides privately warned at the time, according to Haberman and Swan.
The memo, dated April 29, was drafted as the administration was embroiled in a high-profile legal battle over the swift removal of hundreds of Venezuelan men to a brutal prison in El Salvador, joining an avalanche of habeas complaints from immigrants rounded up under Trump’s mass deportation efforts.
“Even where Congress has explicitly suspended habeas corpus rights, the Supreme Court has held that some alternative process must be provided to defendants, with procedural safeguards akin to a habeas corpus action,” Scharf wrote.
A week after the memo was published, White House chief of policy Stephen Miller told reporters outside the White House that the administration was “looking at” ways to circumvent habeas corpus
“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 an invasion, so that is an option we are actively looking at,” Miller said May 9.
At the time, the administration was wrestling with federal judges and the Supreme Court over the president’s use of a centuries-old wartime law to deport dozens of Venezuelan immigrants to a brutal Salvadoran prison.
A divided Supreme Court allowed the president to invoke the Alien Enemies Act to summarily remove Venezuelan nationals who were accused of being Tren de Aragua gang members, but the justices stressed that immigrants are still “entitled to notice and an opportunity to challenge their removal” in front of a judge.
Miller, an architect of the Trump administration’s anti-immigrant agenda, then suggested that Trump suspend immigrants’ right to challenge their removal altogether, according to Haberman and Swan.
“Members of the Administration often have conversations about many different lawful options to implement the President’s agenda — with the President always being the ultimate decider,” White House spokeswoman Abigail Jackson told The Independent in response to questions about the memo and the president’s response.
Trump, just months into his second presidency, was already facing desperate warnings from critics and legal scholars that his defiance of court orders had reached a dangerous constitutional crossroads. His suspension of a constitutional right would have escalated his war with a judiciary that he has seen as insufficiently deferential to his presidency and an obstacle in the way of his agenda.
Those concerns were also materializing among a small group of senior aides inside the White House, Haberman and Swan found.
