What Is Habeas Corpus and How Is It Under Threat By the Trump Administration?
President Donald Trump’s deputy chief of staff for policy Stephen Miller told reporters on Friday, May 9, that the Trump Administration is “looking at” the option of suspending “habeas corpus” in order to aid the Trump Administration’s efforts to deport undocumented individuals.
“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 invasion,” Miller said outside the White House. “So, I would say that’s an option we’re actively looking at. A lot of it depends on whether the courts do the right thing or not.”
[time-brightcove not-tgx=”true”]Miller’s comments come amid a fraught time for the Trump Administration, as many deportation cases make their way through the courts. Several of these pending cases are based on habeas corpus, including the deportation of Venezuelan migrants alleged by the Trump Administration to be a part of the Tren de Aragua gang.
Another high-profile immigration case centers on Kilmar Abrego Garcia. The Maryland man was deported to El Salvador by the Immigration and Customs Enforcement (ICE) in March, in what was initially called an administrative error. Ábrego García entered the U.S. illegally years ago, but in 2019 a judge granted him “withholding of removal” status, after determining that his fears of persecution if he were returned to El Salvador were credible. The Supreme Court ordered the federal government to “facilitate” Ábrego García’s return to the United States, but it has yet to do so.
With habeas corpus proving to be a prominent argument and talking point amid the Trump Administration’s immigration crackdown, here’s what to know about the legal term.
What is habeas corpus?
The literal meaning of habeas corpus is “you should have the body,” but as a legal principle, it gives a person the ability to challenge a detention in court.
“Federal habeas corpus is a procedure under which a federal court may review the legality of an individual’s incarceration,” per Congress. “It is most often the stage of the criminal appellate process that follows direct appeal and any available state collateral review.”
This right also extends to noncitizens held within the United States, and in the case of those migrants who have been detained by the federal government, pending removal from the country as a part of Trump’s mass deportation plans, habeas corpus can be used to challenge.
In Article I of the Constitution, it is stated that habeas corpus can be suspended only “in Cases of Rebellion or Invasion [when] the public Safety may require it.” This is described, though, under the powers of Congress, not the Executive Branch.
The history of habeas corpus dates back centuries to English law and is seen as a protection against arbitrary detentions by local and national governments.
“The reason that habeas corpus has been designed to protect everybody is because over the centuries, people have understood that the people in power can come for you next,” says Eric M. Freedman, a professor of law at Hofstra University. “You can be in power today, and you can be an out-group tomorrow. And so the whole concept is to protect whoever is temporarily unpopular with the ruling government.”
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The current political climate
Trump and his Administration have repeatedly stated that the U.S. is under an “invasion” of illegal immigration, and that their efforts to mass deport individuals should be aided by the Alien Enemies Act. In a proclamation, Trump said: “As President of the United States and Commander in Chief, it is my solemn duty to protect the American people from the devastating effects of this invasion.” This act, which is a part of the Alien and Sedition Acts of 1798, is a wartime measure that “authorizes the President, during a declared war or in the event of an ‘invasion’ or ‘predatory incursion’ perpetrated or threatened by ‘any foreign nation or government,’ to issue regulations directing the conduct of or otherwise restraining citizens or nationals of the hostile nation or government.”
Several judges have ruled against the Trump Administration’s use of the Alien Enemies Act, including a Trump-appointed federal judge.
On May 6, a federal judge in New York blocked Trump’s invocation of the Alien Enemies Act, arguing that the Trump administration had not shown evidence of a foreign invasion to justify using it for deportations.
In early April, the Supreme Court ruled that the Trump Administration could continue using the Alien Enemies Act to deport alleged gang members to Venezuela, but with certain limitations. The Supreme Court later blocked the Trump Administration from using the Alien Enemies Act to deport a group of immigrants in Texas.
Can the Trump Administration suspend habeas corpus?
Miller has suggested that the Trump Administration is looking at whether they might suspend habeas corpus to aid their mass deportation efforts. But does the Administration have the legal jurisdiction to do so?
“The quick answer couldn’t be clearer. Only Congress can suspend the writ of habeas corpus,” says Brandon L. Garrett, a professor of law at Duke University.
At a time when Trump’s second term has been defined by an expansion of executive power across the federal government, Garrett notes that habeas corpus is also “about separation of powers and oversight of executive power.”
“It has played a crucial role in many emergencies and wars during our history. And courts have consistently emphasized that habeas provides its strongest protections when the executive seeks to detain people without a trial,” Garrett says.
Freedman highlights the importance of habeas corpus, stating: “This is a question of fundamental constraints on the tyrannical power of people to throw you in jail and throw away the keys.”
The subject of the Trump Administration considering a suspension of habeas corpus was put forth to Republican Sen. John Barrasso during his Sunday morning appearance on NBC’s Meet the Press. Host Kristen Welker asked Barrasso: “Would you vote to suspend habeas corpus, since the power does ultimately lie with Congress?” To which the Republican Senator responded: “I don’t believe this is going to come to Congress. What I believe is that the President is going to follow the law. He has said it repeatedly.”
However, there are concerns when it comes to the Trump Administration upholding the Constitution. When Trump appeared on Meet the Press on May 4, he was asked if the President needs to uphold the U.S. Constitution, to which he replied: “I don’t know.”
“I don’t know. I’m not a lawyer.” Trump said when asked if he believes that every person in the U.S. deserves due process—regardless of their legal status. “I don’t know. It seems—it might say that, but if you’re talking about that, then we’d have to have a million or two million or three million trials.”
Has habeas corpus been suspended before?
Habeas corpus has been suspended four times in U.S. history—by Abraham Lincoln during the Civil War, in eleven South Carolina counties overrun by the Ku Klux Klan during Reconstruction of the South, in two provinces of the Philippines during a 1905 insurrection, and in Hawaii after the bombing of Pearl Harbor, according to the National Constitution Center.
“The occasions for suspension are vanishingly rare, and essentially only in cases where there is such pervasive violence that it’s, as a practical matter, impossible to get to a judge—in situations where the Japanese are in Hawaii or the Confederates are in Maryland—and there are no functioning civilian courts,” says Freedman. “This is why the framers [of the Constitution] put it in the hands of Congress.”