The Trump White House is 1,000% wrong in “actively looking at” suspending habeas corpus in the context of immigration. It is the only protection written into the Constitution, not the Bill of Rights, a fundamental shield — stretching back to the Magna Carta — to contest one’s detention by the government: “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.”
There is no rebellion, as there was during the Civil War, and there is no invasion, despite what Donald Trump claims and what White House Deputy Chief of Staff Stephen Miller, the aide who floated the habeas corpus suspension idea, says.
Only four times has the Great Writ been suspended under our Constitution and each time that suspension was invoked under an act of Congress and it was very specific. And it is the Congress, not the president, who has this power. Of that there is no debate as the wartime suspension appears in Article I of the Constitution, which delineates responsibilities of the Congress. Habeas corpus suspension appears under Section 9, which are the powers denied to Congress.
Notably, it is not Article II, which lays out the powers of the president.
Lincoln did suspend habeas corpus during the Civil War, but it was with the consent of the Congress. President Ulysses S. Grant did the same for a limited time in nine counties in South Carolina during Reconstruction, again, with the agreement of Congress.
The other two instances were in U.S. territories, in the Philippines during a 1905 rebellion and in Hawaii after Pearl Harbor, when the Territory of Hawaii was under martial law, but each time acting under congressional grant.
None of these circumstances are comparable to what MAGA types have taken to calling an “invasion,“ which is really just an overheated term for the presence of immigrants, including asylum seekers, around the country. This is not a real danger and has been ongoing in some form or another since the country’s founding.
As with many such moves, the administration would certainly try to justify this under the banner of immigration enforcement and vague national security. Aside from the fact that these justifications have never actually stopped the government from applying expanded powers more broadly there is an obvious paradox between the notion that these policies would be applied exclusively to those that deserve it and that there would be no due process.
Determining whether or not someone has committed an offense and how they should be punished for it is the entire underlying premise for due process in the first place. If the right to contest a detention disappears, how exactly is one meant to prove that you’re not actually a national security threat, or actually a citizen?
We don’t have to speculate much about how this looks because it is the modus operandi of despots around the world already.
Republicans and Democrats alike on the federal, state and local levels must refuse this Trump power grab and effort to illegally suspend what is our most fundamental right. Some harms cannot be undone.
