WASHINGTON, D.C. — The Trump administration is openly considering a dramatic and controversial legal maneuver: suspending habeas corpus, a centuries-old constitutional safeguard, as part of its intensified effort to deport undocumented migrants.
Homeland Security Secretary Kristi Noem ignited a firestorm on Tuesday when she mischaracterized the writ of habeas corpus during a tense Senate hearing, describing it as a “constitutional right that the president has to be able to remove people from this country and suspend their rights.”
Her statement drew immediate rebuke from Sen. Maggie Hassan (D-N.H.), who interrupted the former South Dakota governor mid-sentence. “That’s incorrect,” Hassan retorted, clarifying that habeas corpus ensures the government must justify any imprisonment before a judge. “It’s what separates free societies like America from police states like North Korea.”
The exchange followed recent remarks by Trump aide Stephen Miller, who confirmed the administration is “actively looking at” suspending habeas corpus — citing a supposed migrant “invasion” as justification.
What Is Habeas Corpus?
Latin for “you have the body,” habeas corpus allows individuals to challenge unlawful imprisonment in court. Codified in the U.S. Constitution, it can only be suspended “in cases of rebellion or invasion” when public safety demands it — a standard that legal experts say has rarely been met in U.S. history.
When Has It Been Suspended?
Only four times:
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President Lincoln famously suspended it during the Civil War to detain Confederate sympathizers.
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President Grant did so to combat KKK violence during Reconstruction.
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It was invoked during Philippine unrest in 1905 and after Pearl Harbor in Hawaii — both under U.S. jurisdiction but prior to statehood.
In each case, Congress authorized or retroactively approved the suspension. Most scholars agree only Congress has that power — a view echoed by now-Supreme Court Justice Amy Coney Barrett in earlier legal writing.
Trump’s Legal Gamble
The Trump administration, led by hardliner Stephen Miller, appears to be laying the groundwork for a constitutional showdown. By framing rising border crossings as an “invasion,” officials aim to trigger the Constitution’s Suspension Clause.
“This is an option we’re actively looking at,” Miller said earlier this month. “A lot of it depends on whether the courts do the right thing.”
But legal scholars are deeply skeptical. John Blume, a Cornell Law professor, called Noem’s interpretation “either dangerously ignorant or intentionally misleading.” He warned that any unilateral suspension by the executive would likely fail in the courts.
The Broader Legal Strategy
Miller and others have pointed to the Immigration and Nationality Act, claiming it limits federal judges’ power in immigration matters. But that act still allows judicial review in many cases — meaning habeas corpus challenges are often still possible.
Past attempts to bypass judicial oversight — including Trump’s controversial use of the Alien Enemies Act to expedite deportations — have already been struck down by federal courts in multiple states.
Political and Legal Fallout
Pressed by Sen. Hassan, Noem insisted she and the president are “following all court orders,” a claim Hassan quickly disputed: “That is obviously not true for anybody who reads the news.”
With razor-thin margins in Congress, any legislative attempt to suspend habeas corpus seems politically unfeasible. Even during crises like 9/11, President George W. Bush stopped short of invoking the clause — though he did face constitutional challenges over Guantanamo detentions, which were ultimately rebuked by the Supreme Court in 2008.
A Test of American Democracy?
While the Trump administration tests the limits of executive authority at the border, legal scholars warn that undermining habeas corpus could erode one of the nation’s most fundamental democratic protections.
“Suspending habeas corpus without clear legal grounds would not just be unconstitutional,” Blume warned, “it would move the country into authoritarian territory.”
As political rhetoric heats up and migrant arrivals grow, the battle over this ancient right may soon reach the highest courts — and test the resilience of America’s constitutional framework.
