Elections & Politics Brief #185 | Nate Iglehart | May 18, 2025

One of the most fundamental aspects of a fair and just legal system is the ability to challenge one’s detention, often referred to as “habeas corpus”. Habeas corpus is an old but crucial pillar of justice, dating back to the 13th-century Magna Carta, which stated that “No man shall be arrested or imprisoned…except by the lawful judgment of his peers and by the law of the land.”

Without a recourse to challenge detention, a government could jail someone without having to justify its decision to a judge. As a result, someone detained, regardless of whether they committed a crime or not, would have no way of ensuring their rights are protected, as there would be no judge to guarantee due process.

The Founding Fathers of the U.S. knew this and enshrined habeas corpus in Article 1, Section 9 of the Constitution. But in recent weeks, the Trump administration has seemingly decided the Constitution is far more flexible than ever before, with key administration officials suggesting the suspension of habeas corpus to assist in Donald Trump’s deportation campaign as it grates against judges across the country. 

Analysis

In the face of what he calls “activist judges”, Donald Trump has not backed down from stretching both the Constitution and the justice system to fit his needs, defying court orders and having his allies try to impeach judges who rule against his efforts to deport perceived criminal migrants. For the moment, the courtroom battles seem likely to continue into the coming months.

But in early May, the White House deputy chief of staff, Stephen Miller, suggested that the Trump administration was eyeing ways to suspend habeas corpus, calling it a “privilege”. His justification is one that the administration has been leaning on intensely: that the arrival and presence of illegal migrants in the U.S. constitutes an “invasion,” which would give the administration extensive emergency powers.

More recently, Secretary of Homeland Security Kristi Noem echoed the idea that migrants illegally crossing the border from Mexico could warrant a suspension of habeas corpus.

Now, there are times when habeas corpus can, and has, been suspended, primarily in times of rebellion and invasion. Across American history, it’s been suspended four times: once under the threat of a British invasion of New Orleans in 1814, once under President Abraham Lincoln, during the Civil War in 1861, once under President Theodore Roosevelt during a 1905 rebellion in the Philippines, and once under President Franklin Delano Roosevelt in Hawaii after the attack on Pearl Harbor.

Each suspension, save for the case during the Civil War, was ordered after being authorized by Congress, as while the original phrasing of habeas corpus doesn’t specify which government branch can suspend it, most legal experts agree that only Congress can do it. In the Civil War case, Lincoln faced such backlash after skipping congressional authorization that he went back and requested (and received) it.

There is also a decent breadth of legal precedent regarding who gets habeas corpus rights. In the 2004 Supreme Court case Hamdi v. Rumsfeld, the Supreme Court ruled that only Congress can suspend the writ of habeas corpus. Justice Clarence Thomas has also recently suggested that habeas corpus was indeed a constitutional right of national citizenship.

But that point of national citizenship is an important delineation, as the Trump administration would argue that habeas corpus doesn’t apply to noncitizens. Trump’s argument has some legal basis, as in 2020, the Supreme Court tossed out a decision by a lower appellate court allowing an illegal immigrant to file a writ of habeas corpus to overturn his asylum claim denial.

However, this line of argument runs into a sizable hurdle, as that 2020 decision applied more to his asylum claim instead of the detention. Additionally, a separate decision in the 2008 case of Boumediene v. Bush ruled that foreign nationals, at Guantánamo Bay in this case, needed to have meaningful habeas corpus reviews by civilian judges.

Whether or not Trump will try to suspend habeas corpus is an open question, depending on whether both judges and Congress believe illegal immigration constitutes an “invasion.” But Miller’s suggestion is an indication of the growing influence of the far-right in the Trump administration’s already hardline immigration policy.

Stephen Miller himself was a key immigration policy advisor in Trump’s first term and has come back the second time around with bigger plans. These plans are largely in line with the Heritage Foundation’s Project 2025, a checklist from far-right activists for Trump’s second term.

From sending troops to the southern border to limiting refugee admissions and revoking the temporary protected status of thousands of migrants, Trump’s policies are in line with that wish list.

While Miller himself has distanced himself from Project 2025, Trump brought in Russell Vought, an architect of the project. But here, there is a little gray around what Project 2025 believes regarding habeas corpus.

The actual text of Project 2025 doesn’t explicitly reference habeas corpus, and the Heritage Foundation’s Guide to the Constitution does explicitly say, “in Hamdi v. Rumsfeld (2004), the Supreme Court confirmed that only Congress possesses the constitutional power to suspend the writ.”

But it also focuses on many questions about following legal decisions and whether habeas corpus can be violated if there’s another avenue for contesting one’s detention. This has been an argument the Trump administration has made in recent court hearings regarding its deportation efforts.

Only time will tell if habeas corpus can, and will, be suspended. But the questions raised about how far the Trump administration is willing to push its power are troubling, especially with the fate of millions of undocumented immigrants on the line.

Engagement Resources

• The American Immigration Council is a nonprofit group that coordinates litigation, research, and advocacy for immigration policies.
• The American Constitution Society is a legal organization that advocates for a more progressive interpretation of the Constitution.
• The Federalist Society is a conservative and libertarian legal organization that advocates for a more fundamentalist interpretation of the Constitution.