A senior White House lawyer warned that suspending habeas corpus protections for illegal immigrants could lead to significant constitutional challenges. This warning was directed to President Donald Trump regarding a strategy reminiscent of those used during the Civil War under President Abraham Lincoln. Two memoranda obtained by New York Times reporters Jonathan Swan and Maggie Haberman revealed that White House staff secretary Will Scharf discussed drastic policy proposals suggested by Stephen Miller, Trump’s deputy chief of staff for policy, in May 2025. The memos provided insight into internal debates over executive power as the administration pursued a strict immigration enforcement agenda.
One memorandum, dated April 29, 2025, discussed habeas corpus, which allows detainees to contest the legality of their detention. Scharf emphasized that habeas corpus is a legal mechanism to challenge unjust confinement and prevents arbitrary detention by government authorities. He noted that the Constitution allows for the suspension of habeas corpus only in cases of rebellion or invasion and that Congress, not the president alone, typically holds the authority to suspend it. Scharf also indicated that any attempt to suspend habeas corpus would likely face legal challenges, particularly given the current composition of the Supreme Court.
The second memorandum, dated October 29, 2025, focused on the Insurrection Act, which permits the president to deploy military forces domestically under certain conditions. Scharf described this act as a significant exception to the prohibition on using federal military forces for domestic law enforcement. He cautioned that invoking the Insurrection Act could lead to immediate legal challenges, despite the broad powers it grants to the president.
Ultimately, neither of the proposals was implemented. In response to the memos, White House spokeswoman Abigail Jackson stated that discussions of legal options do not necessarily indicate final policy decisions. However, the administration did adopt a more aggressive immigration detention policy in July 2025, allowing many immigrants arrested in the U.S. to be detained without bond hearings during removal proceedings, which led to extensive litigation against the government.