The legal principle of habeas corpus—a person’s right to challenge unlawful detention—is back in the spotlight after reports that President Donald Trump’s administration is considering suspending it as part of a more aggressive immigration policy.
Habeas corpus is a long-standing legal protection that allows people to ask a court to review whether their detention or imprisonment is lawful. Immigrants and civil liberties groups have increasingly used habeas corpus petitions in response to the Trump administration’s push for faster deportations. But legal experts say these petitions are tough to win in federal court, especially for immigrants who often lack legal representation.
Legal scholars warn that suspending habeas corpus would have extreme consequences. “The executive could just detain you, and there would be no recourse,” said Lee Kovarsky, a University of Texas law professor and expert on the subject. “Obviously they would do it to try to detain certain non-citizens, but there’s no reason why it’s limited to them.”
Kovarsky called the idea of suspending habeas corpus a “national historical disaster,” noting that the Constitution allows it only in cases of rebellion or invasion when public safety is at risk.
White House Deputy Chief of Staff Stephen Miller said on Friday that the administration is “actively looking at” the option and that it “depends on whether the courts do the right thing or not.” Legal analysts argue this would stretch constitutional limits. “Congress has never passed a law authorizing deportations without any court involvement, as Miller suggests,” said CNN legal analyst and former federal prosecutor Elie Honig.
The U.S. Constitution clearly limits the suspension of habeas corpus to times of “Rebellion or Invasion.” Kovarsky emphasized that the rule is strict “because it’s so severe.” “If you don’t have access to a judge, the value of your legal rights drops to zero,” he said.
The Supreme Court recently issued a mixed ruling on the matter. In an unsigned order on April 7, the court allowed the Trump administration to temporarily speed up deportations under the Alien Enemies Act. However, the ruling also said migrants still had a right to be notified and to file habeas corpus petitions challenging their removal.
The American Civil Liberties Union (ACLU) responded by filing lawsuits on behalf of specific clients and other vulnerable Venezuelans who could face deportation under this law. In another decision on April 19, the court blocked a deportation order targeting a group of immigrants in Texas, marking a rare overnight intervention.
Habeas corpus has played a major role in other high-profile legal battles, such as challenges to the detention of suspected terrorists at Guantanamo Bay. In 2008, the Supreme Court ruled that Guantanamo detainees had the right to use habeas corpus to challenge their imprisonment.
In 2021, a federal judge ruled that the detention of Asadullah Haroon Gul, a prisoner at Guantanamo Bay, was unlawful and ordered his release. He later returned to Afghanistan. It was the first time in a decade that a Guantanamo detainee had successfully used a habeas petition.
More recently, Mahmoud Khalil, a Palestinian activist and legal permanent U.S. resident, filed a habeas petition to fight his detention by immigration authorities. His deportation case is still pending.
The U.S. has suspended habeas corpus only four times in history:
According to the National Constitution Center, these were all tied to extreme emergencies threatening national security.
