Trump's Habeas Corpus Threat
No president, even Lincoln, has ever suspended the writ without Congress.
By William A. Galston
May 13, 2025
Deputy White House chief of staff Stephen Miller last Friday told reporters that the Trump administration is "actively looking at" suspending the writ of habeas corpus, which ensures that a prisoner has the right to challenge his detention in court.
"Well, 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," Mr. Miller said. "A lot of it depends on whether the courts do the right thing or not."
Translation: If the judicial branch impedes the administration's policy of arbitrary detentions, the executive branch will take the matter out of judges' hands.
Of all the measures the administration has proposed, this is the most dangerous. Habeas corpus is known as the "Great Writ" for good reason. For centuries, English monarchs jailed people without formally charging them, sometimes keeping them incarcerated indefinitely. The Assize of Clarendon, passed in 1166, set the foundation for a legal system that respects individual rights, and Parliament cemented it by enacting the Habeas Corpus Act of 1679. The writ became the core protection of liberty against arbitrary government power.
The American colonists understood this history, as did the Constitution's framers. As practical men, they also understood that in times of dire emergency, the executive might feel compelled to act swiftly to protect the Constitution. This was their motivation for including a key sentence in Article I, Section 9: "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."
Neither constitutional law nor history supports the proposition that President Trump can suspend the writ without congressional review and authorization. Mr. Miller can argue that Mr. Trump faces the kind of emergency that Lincoln did, but few legal scholars will endorse such a claim. Unlike in Lincoln's situation, moreover, Congress is already in session to consider the administration's request. And three federal judges have rejected the administration's assertion that illegal immigration amounts to an invasion.
It's unthinkable that Mr. Trump would be allowed to suspend habeas corpus, but that his administration is even considering it speaks volumes about his drive for unchecked power.
https://www.wsj.com/opinion/trumps-habeas-corpus-threat-due-process-law-policy-history-f3a58b21?mod=hp_opin_pos_2