Stephen Miller Was Closer to Realizing His Scariest Idea Than We Ever Knew

Jurisprudence

By

Shirin Ali

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June 18, 2026 5:45 AM

Photo illustration by Slate. Photo by Andrew Harnik/Getty Images.

This is Executive Dysfunction , a newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. Click here to receive it in your inbox each week.

President Donald Trump has pushed, twisted, and abused plenty of federal laws over the past 18 months in order to accomplish his agenda through brute force, from invoking the century-old Alien Enemies Act to advance his mass-deportation plan to eliminating the Department of Education without congressional approval to, most recently, trying to establish a $1.8 billion “anti-weaponization” fund. Despite judges from across the political spectrum consistently finding these actions unlawful, the Trump administration has not slowed down in the slightest. This week, though, we learned that the president was seriously considering what would have been perhaps the most aggressive and terrifying attack on the rule of law yet: the suspension of habeas corpus, a core constitutional right that allows a person to challenge their detention in federal court. Habeas corpus has been suspended only four times in the history of the United States.

Suspension would have focused on immigrants lacking legal status but not necessarily been limited to them. Dating back to the Magna Carta and later enshrined in Article 1 of the Constitution, the writ of habeas corpus is a judicial order that requires law-enforcement authorities to come before a judge to justify a prisoner’s continued confinement. It was established as a safeguard against arbitrary and unlawful imprisonment, so if a judge finds the government’s reasoning insufficient, they hold the power to immediately order the prisoner’s release with sufficient legal grounds. Habeas petitions are not meant to determine a prisoner’s guilt or innocence; they serve only as a test of the legality of the detention.

According to the New York Times , as the Trump administration was attempting to quickly scale mass deportations last year, senior officials threw around the idea of suspending habeas—something only Congress, not the executive, has the power to do. The administration felt stymied by the courts, because noncitizens swept up in immigration raids across the country were exercising their legal rights by filing habeas petitions, and judges were consistently finding against the Trump administration that many had been unlawfully detained. Without extreme intervention, the White House realized, the president’s plan to deport 1 million people by the end of his first year was becoming further and further out of reach. (The administration ultimately fell well short of this goal.)

By May 2025, just a few months after U.S. District Court Judge James Boasberg held that the Justice Department had violated his restraining order that aimed to bar deportation flights from the U.S. to El Salvador, White House senior adviser Stephen Miller suggested that a new approach was under consideration. “The writ of habeas corpus can be suspended in a time of invasion. So I would say that’s an option we’re actively looking at,” Miller, who is not a lawyer, told journalists . Reporting by the Times reveals that although Miller and other senior administration officials discussed suspending habeas, the idea was eventually dropped as it became apparent the move would certainly be challenged in court and become a “huge, self-inflicted distraction.”

Suspending habeas corpus is not a simple on/off switch. The Constitution explicitly states that the right can be suspended only through an act of Congress and only “when in Cases of Rebellion or Invasion the public Safety may require it.” This has happened just a few times in U.S. history: during the Civil War; during Reconstruction, an era when violence by the Ku Klux Klan peaked; after the attack on Pearl Harbor; and finally, in the 2000s by former Republican President George W. Bush, who claimed that terrorism suspects at Guantánamo Bay could be indefinitely imprisoned because no court had jurisdiction to hear their cases. The Supreme Court disagreed with Bush, declaring in a landmark decision that despite detainees’ designation as enemy combatants or incarceration at Guantánamo, they are not barred from seeking habeas.

The importance of habeas corpus at this moment cannot be overstated. The Trump administration has chosen to take an intensely punitive interpretation of immigration law, refusing to parole detainees so they remain behind bars, and eliminating bond proceedings for the overwhelming majority of noncitizens. “A federal habeas petition is o…