US may suspend habeas corpus for immigrants: What it means and the impact

Business Standard

13-05-2025

The White House is considering whether to suspend a long-standing legal safeguard that allows migrants to challenge their detention in court. The move, floated by senior adviser Stephen Miller, could fast-track deportation proceedings, but has drawn criticism from lawmakers and legal scholars.
Speaking to reporters, Miller said, 'The Constitution is clear that... the privilege of the writ of habeas corpus can be suspended in time of invasion — so it's an option we're actually looking at, but a lot of it depends on whether the court will do the right thing or not.'
His remarks come as the administration continues a crackdown on illegal immigration and foreign students involved in campus protests.
Reacting to Miller's comments, US Senator Amy Klobuchar said, 'Congress is not going to reverse habeas corpus — and no, the president can't do it himself.'
What is habeas corpus?
Habeas corpus, a Latin term meaning 'you should have the body,' is a legal mechanism that allows a person to appear before a court to challenge whether their detention is lawful. It's often referred to as the 'Great Writ of Liberty'.
Legal historians say the concept predates the Magna Carta and is embedded in the legal traditions of the UK, the US, and other democracies. In the United States, it is found in Article One of the Constitution, which reads: '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 principle has been used in US courts, including the Supreme Court, to review detentions — especially in immigration, where migrants use habeas petitions to contest the duration and conditions of their imprisonment.
Dr Sarvam Ritam Khare, an advocate-on-record at the Supreme Court of India, told Business Standard, 'Habeas corpus is originally a common law concept meaning 'produce the body' and is the remedy in cases where a person has been wrongfully detained. The American Constitution recognises the privilege of habeas corpus as absolute and non-suspendable by virtue of Article I, Section 9, Clause 2.'
He added that the 14th Amendment of the US Constitution guarantees the right to life and liberty to every person in the country, regardless of citizenship. 'It says that no state shall deprive any person of life, liberty or property without due process of law. This due process test opens up the question of whether such a law is constitutionally valid. So, even an enacted law cannot override personal liberty unless it passes that test,' he said.
'Any law suspending the judicial remedy of habeas corpus in the US is unconstitutional and against various human rights treaties — many of which the US has not only signed but helped shape,' said Khare.
Sunayana Basu Mallik, partner at King Stubb & Kasiva, Advocates and Attorneys, told Business Standard, 'Suspending habeas corpus for migrants would block court challenges to detention, risking unchecked, prolonged confinement. This undermines due process, may violate constitutional protections, and could lead to human rights issues, disproportionately harming vulnerable immigrant communities.'
Ketan Mukhija, senior partner at Burgeon Law, said, 'This would mark a serious shift in immigration policy and raise deep concerns about executive overreach and constitutional limits.'
Past suspensions in US history
Habeas corpus has been suspended only a few times in American history. President Abraham Lincoln first suspended it in 1861 during the Civil War, prompting a clash with then-Chief Justice Roger Taney, who argued that only Congress could authorise such a suspension. Congress later passed legislation in 1863 to permit suspension for the duration of the war.
In the years after the Civil War, the writ was suspended again to suppress uprisings by the Ku Klux Klan.
Another notable instance was after the 1941 attack on Pearl Harbour, when habeas corpus was suspended in Hawaii. This allowed authorities to detain Japanese Americans on the island during World War Two.
Current legal disputes reignite interest in habeas corpus
Miller's comments came hours after a federal judge in Vermont ordered the release of Rümeysa Öztürk, a Turkish doctoral student at Tufts University on Friday. She had been detained by immigration officers in March as part of a broader campaign against student protesters. Öztürk had written a piece in her university newspaper criticising the administration's response to the war in Gaza. Authorities claimed, without evidence, that she had supported Hamas.
Miller criticised the judge's ruling, calling it 'a judicial coup' and said the executive had 'absolute authority' to revoke visas without court oversight.
'This judicial coup by a handful of Marxist judges to frustrate that effort can only be understood as an attack on democracy,' Miller said.
The case has drawn attention to broader legal efforts to challenge detentions. In April, the Supreme Court ruled that migrants subject to removal under the Alien Enemies Act must be given adequate notice before deportation so they have time to petition the courts. This ruling paused some deportations in Texas.
Mahmoud Khalil, a Columbia University graduate student detained for his involvement in pro-Palestinian protests, has now filed a habeas corpus petition as he fights deportation.