Stephen Miller, the White House’s deputy chief of staff, said on Friday that a suspension of the right of a detained person to challenge their detention in court was “an option we’re actively looking at” and “depends on whether the courts do the right thing or not”.

Mr Miller also claimed that “Marxist judges” were carrying out a “judicial coup” by ruling in favour of some legal challenges brought against deportation orders amid Trump’s immigration crackdown.

Article 1 of the US Constitution on the powers of Congress states that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”.

Prominent American legal scholar Professor Ilya Somin told NBC News: “Habeas corpus can only be suspended under the Constitution in times of invasion or insurrection — none of that is happening now — and it can only be done by Congress, not the president acting on his own.”

There have been four previous suspensions of habeas corpus in the US: the first was during the American civil war; the second was to tackle the Ku Klux Klan during reconstruction; the third was in the Philippines while it was under US control; and the fourth was in Hawaii after the bombing of Pearl Harbor.

Any decision by the Trump administration to suspend habeas corpus, especially without going through Congress, is likely to end up before the Supreme Court of the United States.

Kica Matos, president of the National Immigration Law Center (NILC), said Friday: “We have a very clear message for Stephen Miller, Donald Trump, and everyone in the administration considering suspending habeas corpus to further their unconstitutional assault on immigrant communities and our democracy — we will fight and defeat you in court.”