President Donald Trump has pushed, twisted, and abused plenty of federal laws over the past 18 months in order to accomplish his agenda through brute force, from invoking the century-old Alien Enemies Act to advance his mass-deportation plan to eliminating the Department of Education without congressional approval to, most recently, trying to establish a $1.8 billion “anti-weaponization” fund. Despite judges from across the political spectrum consistently finding these actions unlawful, the Trump administration has not slowed down in the slightest. This week, though, we learned that the president was seriously considering what would have been perhaps the most aggressive and terrifying attack on the rule of law yet: the suspension of habeas corpus, a core constitutional right that allows a person to challenge their detention in federal court. Habeas corpus has been suspended only four times in the history of the United States.
Suspension would have focused on immigrants lacking legal status but not necessarily been limited to them. Dating back to the Magna Carta and later enshrined in Article 1 of the Constitution, the writ of habeas corpus is a judicial order that requires law-enforcement authorities to come before a judge to justify a prisoner’s continued confinement. It was established as a safeguard against arbitrary and unlawful imprisonment, so if a judge finds the government’s reasoning insufficient, they hold the power to immediately order the prisoner’s release with sufficient legal grounds. Habeas petitions are not meant to determine a prisoner’s guilt or innocence; they serve only as a test of the legality of the detention.
According to the New York Times, as the Trump administration was attempting to quickly scale mass deportations last year, senior officials threw around the idea of suspending habeas—something only Congress, not the executive, has the power to do. The administration felt stymied by the courts, because noncitizens swept up in immigration raids across the country were exercising their legal rights by filing habeas petitions, and judges were consistently finding against the Trump administration that many had been unlawfully detained. Without extreme intervention, the White House realized, the president’s plan to deport 1 million people by the end of his first year was becoming further and further out of reach. (The administration ultimately fell well short of this goal.)
By May 2025, just a few months after U.S. District Court Judge James Boasberg held that the Justice Department had violated his restraining order that aimed to bar deportation flights from the U.S. to El Salvador, White House senior adviser Stephen Miller suggested that a new approach was under consideration. “The writ of habeas corpus can be suspended in a time of invasion. So I would say that’s an option we’re actively looking at,” Miller, who is not a lawyer, told journalists. Reporting by the Times reveals that although Miller and other senior administration officials discussed suspending habeas, the idea was eventually dropped as it became apparent the move would certainly be challenged in court and become a “huge, self-inflicted distraction.”
Suspending habeas corpus is not a simple on/off switch. The Constitution explicitly states that the right can be suspended only through an act of Congress and only “when in Cases of Rebellion or Invasion the public Safety may require it.” This has happened just a few times in U.S. history: during the Civil War; during Reconstruction, an era when violence by the Ku Klux Klan peaked; after the attack on Pearl Harbor; and finally, in the 2000s by former Republican President George W. Bush, who claimed that terrorism suspects at Guantánamo Bay could be indefinitely imprisoned because no court had jurisdiction to hear their cases. The Supreme Court disagreed with Bush, declaring in a landmark decision that despite detainees’ designation as enemy combatants or incarceration at Guantánamo, they are not barred from seeking habeas.
The importance of habeas corpus at this moment cannot be overstated. The Trump administration has chosen to take an intensely punitive interpretation of immigration law, refusing to parole detainees so they remain behind bars, and eliminating bond proceedings for the overwhelming majority of noncitizens. “A federal habeas petition is one of the only mechanisms that people have left to seek their release from illegal and unconstitutional detention,” Elora Mukherjee, the director of Columbia Law School’s Immigrants’ Rights Clinic, told me. “And it may be the only mechanism that people have before they are illegally and unconstitutionally deported from the United States, in violation of their due process rights.”
Removing a person’s right to challenge a detention via habeas petition would essentially be a death knell to any semblance of protection from deportation for pretty much anyone, regardless of legal status. We’ve watched as the Trump administration has admitted that it mistakenly deported people like Kilmar Abrego Garcia, as numerous judges have continued to find that the federal government has been wrongly arresting lawful U.S. residents, and as deaths of detainees held in Immigration and Customs Enforcement custody have hit an all-time high this year. Not to mention the DOJ has fired over 100 immigration judges and replaced them with conservative lackeys with a clear history of ruling against immigrants. “Without habeas corpus, even more noncitizens would remain detained for prolonged periods of time until they are deported from the United States, which is exactly what Stephen Miller wants,” Mukherjee said. “I think the inability to seek federal habeas relief would also lead to more people simply giving up on viable claims for immigration relief because they can’t stand to be in detention any longer.”
Through filing habeas petitions, pro-Palestine activist Mahmoud Khalil and Tufts University student Rumeysa Ozturk proved that the Trump administration had unlawfully arrested them; after judges agreed, the federal government was forced to release them from immigration detention. They are just two of some 54,000 habeas cases filed since Trump began his second term 18 months ago, a figure higher than in the past three administrations combined, including Trump’s first term.
Mukherjee has been filing habeas petitions for families held at Texas’ Dilley detention center, a facility the Biden administration stopped using but that Trump has since reopened. ProPublica published an investigation of Dilley earlier this year in which children described in terrifying terms the conditions at the complex.
“Over the past year, I filed federal habeas petitions for an 18-month-old who nearly died in federal immigration custody, for a 6-year-old boy with a leukemia diagnosis, for a young girl who was born with a congenital birth defect who was at risk of dying in federal immigration custody,” Mukherjee said. “The reason these kids and their families were released from immigration detention is because I filed federal habeas petitions for them. Without having that option available, I am worried that babies, toddlers, children, and adults alike are at much higher risk of dying in federal immigration custody.”
For now it seems as if Trump, Miller, and the rest of the White House have abandoned the idea of suspending habeas. Still, as long as Trump is in office, there is plenty of time for the administration to change course.
