Last week, President Trump and Stephen Miller commented that the Administration is "looking" at whether the privilege of the writ of habeas corpus may be suspended. Insofar as Administration officials are actually looking at this question, they may want to revisit "Suspension and Delegation," an article from the Notre Dame Law Review written by then-Professor Amy Coney Barrett. (I blogged about this article in 2020 when then-Judge Barrett was nominated to the Supreme Court.)
In "Suspension and Delegation," Barrett concurred with the conventional understanding that only Congress has authority to suspend the writ of habeas corpus. More provocatively, she also suggested that there are limits on the extent to which Congress can delegate suspension authority to the President, and that some such prior suspensions were unconstitutional.
Here is the abstract:
