As a former Deputy Assistant Attorney General for New York State who defended against habeas corpus petitions, I’ve witnessed firsthand how this ancient writ serves as the last line of defense for those challenging potentially unconstitutional imprisonment. What began as technical work evolved into a profound appreciation for habeas corpus as a cornerstone of American liberty. Now this fundamental protection appears threatened by unprecedented executive ambitions.
A Constitutional Red Alert
The Trump administration’s recent signals about potentially suspending habeas corpus as part of its immigration enforcement agenda should alarm anyone concerned with constitutional governance. In May 2025, both former President Trump and advisor Stephen Miller publicly suggested invoking the Suspension Clause to detain and deport undocumented immigrants without judicial review, characterizing unauthorized migration as an “invasion” under Article I, Section 9.
This framing deliberately tests the boundaries of the Constitution’s narrowly-crafted exception: “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.” The administration’s novel interpretation not only misreads constitutional text but threatens to undermine judicial review of executive detention, a protection so fundamental that it predates the Bill of Rights itself.
Why Habeas Corpus Matters to Everyone
Often called the Great Writ, habeas corpus occupies a unique position in our constitutional system. It’s not just another legal technicality but rather a fundamental check on government power. At its core, habeas corpus means this: the government cannot imprison you without justifying that imprisonment to a neutral judge.
It’s a constitutional emergency brake. When all other protections fail, habeas corpus gives anyone in custody the right to demand that the government explain itself. This protection extends to citizens and non-citizens alike, serving as the last defense against arbitrary detention.
Recent events show why this matters:
- A group of asylum seekers facing mass deportation without individual hearings got a rare emergency Supreme Court order halting their removal.
- Several detainees were reportedly deported despite a federal judge’s order to pause their deportation pending review.
- A Palestinian graduate student at Columbia University was detained during a routine immigration appointment. A judge later ordered his release, finding the government appeared to be retaliating against him for protected speech.
These aren’t abstract legal disputes. They represent real people who would have had no recourse without habeas corpus. Without this vital protection, the government could simply detain people indefinitely with no obligation to justify itself to anyone.
What Justice Barrett Got Right
Before joining the Supreme Court, Justice Amy Coney Barrett wrote extensively about the Suspension Clause. Her 2010 article in the Notre Dame Law Review provides crucial insights that directly challenge current executive proposals.
First, she emphasized that only Congress can suspend habeas corpus. The Constitution gives this extraordinary power exclusively to the legislative branch, not the President.
Second, she argued that even Congress faces strict limits. The most crucial determinations about whether an “invasion” exists and whether “public safety requires” suspension are fundamental judgments that Congress itself must make. They cannot simply pass this responsibility to the President through broad delegation.
Barrett criticized historical laws that gave presidents too much discretion in this area, concluding that such delegations violated the Constitution’s structural protections. Given similar concerns about executive power expressed by several current justices, the Court seems unlikely to permit executive overreach here.
“Invasion” Doesn’t Mean What They Think It Means
The administration’s attempt to classify immigration as an “invasion” stretches constitutional language beyond recognition. Scholars who focus on the Constitution’s original meaning agree that “invasion” in Article I refers to armed incursion, not civilian migration.
The Supreme Court addressed this in 1866, stating that suspension requires “necessity must be actual and present; the invasion real, such as effectively closes the courts and deposes the civil administration.” This high standard has never been met by migration patterns, even during periods of significant immigration surges.
The Suspension Clause contains its own internal limit: suspension is permitted only “when public safety may require it.” Even during genuine invasions, the government must prove actual necessity. This is a standard immigration enforcement cannot meet when courts remain open and functioning.
Why This Matters Beyond Immigration
The current controversy touches on principles far more fundamental than immigration policy alone. At stake are the bedrock elements of our constitutional system.
Power Must Be Divided to Be Controlled
The Constitution deliberately divides emergency powers among different branches of government. This design isn’t accidental. The Founders understood that concentrated power leads to abuse, so they required legislative deliberation before constitutional protections could be suspended. This structure prevents hasty, politically-motivated decisions during times of public fear.
If the President could unilaterally declare an “invasion” and suspend habeas corpus, what would stop future presidents from using similar logic against other groups or in other contexts? The precedent would fundamentally alter our system of checks and balances.
Constitutional Rights Are Not Just for Citizens
Since the 1890s, the Supreme Court has consistently recognized that non-citizens possess constitutional rights to due process before losing their liberty. This principle isn’t just humane; it’s practical. When we allow the government to deny basic rights to one group, those rights become less secure for everyone.
History shows that emergency powers rarely remain limited to their original targets. Powers first used against outsiders inevitably find their way to citizens. Allowing the suspension of habeas corpus for immigrants today creates a dangerous template for broader suspension tomorrow.
An Independent Judiciary Is Essential to Freedom
Our constitutional system depends on having independent courts that can check government overreach. If the executive branch can simply bypass judicial review through suspension, one of the most important safeguards against tyranny disappears.
Courts don’t just protect individual rights; they protect the integrity of the entire system. When judges can review detention decisions, they ensure that the government follows its own rules and respects constitutional boundaries. Remove that review, and we’re left with detention based solely on executive discretion.
Democratic Legitimacy Requires Process
Our system’s legitimacy depends on fair procedures. Even when the government detains people for valid reasons, it must do so according to established rules and with appropriate oversight. The moment we allow detention without review, we undermine public confidence in the entire system.
This isn’t merely theoretical. When people believe the system treats some unfairly, they lose faith in its treatment of everyone. The perception that government can act arbitrarily corrodes democratic legitimacy in ways that extend far beyond immigration.
Our Professional and Civic Duty
Legal professionals have a special responsibility to defend constitutional principles against claims of expediency. I represented the government against habeas petitions; I understand the administrative burden they create. But that burden is precisely the point. The Constitution demands justification before the state deprives anyone of liberty.
The writ of habeas corpus has endured for centuries because it forces power to answer to law. In challenging times, we should remember Justice Jackson’s warning that constitutional protections “were designed to approach immortality as nearly as human institutions can approach it.” If we sacrifice them for temporary policy goals, we may find them impossible to restore when we need them most.
For those outside the legal profession, the message is equally important. Habeas corpus isn’t an abstract legal concept but a practical protection that could someday matter to you or someone you care about. When government officials suggest suspending fundamental constitutional safeguards, the proper response isn’t partisan calculation but principled concern. Some powers are simply too dangerous to grant to any president of any party.
The Constitution’s drafters understood that democracy requires more than elections; it requires constraints on what even democratically elected officials can do. Habeas corpus stands as one of those essential constraints. Defending it today means defending the constitutional system itself for generations to come.