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Yahoo
3 days ago
- General
- Yahoo
For deportations, can a US president suspend the 'writ of habeas corpus'?
Question: Can a U.S. President suspend the "writ of habeas corpus"? Answer: The writ of habeas corpus is a safeguard against unlawful detention. It requires the government to justify, under the law, holding someone in custody. The U.S. Constitution mentions only a few rights explicitly in its original text, and habeas corpus is one of them. Historically, this writ was used to try and free people who were imprisoned or detained without judicial process and was a significant reform against the King of England to prevent unlawful or arbitrary imprisonment. The writ allows individuals to petition a court to determine the legality of their detention. In the U.S. today, it is primarily used to challenge the legality or sufficiency of the legal process. So, can a President suspend it? The short answer is probably not — at least not on his own. The longer answer involves constitutional interpretation, historical precedent, and a bit of Civil War history. The Constitution addresses habeas corpus in Article I, Section 9, which lays out limits on Congress, not the President. It 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 placement in Article I is important, as this article is about the powers and structure of the legislature. The placement suggests that the power to suspend belongs to Congress. That view was confirmed in 1861, during the Civil War when President Abraham Lincoln unilaterally suspended habeas corpus in parts of the country. In response, Chief Justice Roger Taney ruled in Ex parte Merryman that Lincoln's actions were unconstitutional because only Congress had the authority to suspend the writ. Eventually, Congress passed the Habeas Corpus Suspension Act of 1863, giving Lincoln the power by law, which made the issue moot. There have only been four suspensions of the writ of habeas corpus since the Constitution was ratified. The writ was suspended during the Civil War; in parts of South Carolina during Reconstruction; in two provinces of the Philippines during a 1905 insurrection; and in Hawaii after Pearl Harbor. In modern times, no President has tried to suspend habeas corpus without congressional approval. Cerabino on Trump: Three reasons Trump's 'One Big Beautiful Bill' is bad for Florida Even during World Wars, the Cold War, and the aftermath of 9/11, presidents have relied on laws passed by Congress to detain individuals or limit court access, but the writ itself has remained intact. In fact, the Supreme Court has repeatedly reinforced its importance. In Boumediene v. Bush (2008), the High Court ruled that detainees at Guantánamo Bay had a constitutional right to habeas corpus, even though they were held outside the United States. The Court called habeas corpus a 'fundamental precept of liberty.' Nonetheless, there are scholars who argue that the President might have some "emergency authority" in cases where Congress is unable to act. It is possible that this argument could get some traction in the courts today where there has been some movement toward granting the President a greater scope of authority. For now, though, it is likely that any suspension of the writ would require congressional approval based on an invasion or rebellion. Kevin Wagner is a noted constitutional scholar, political science professor, and co-Director of the PolCom Lab at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@ or reach him on (X) @kevinwagnerphd. This article originally appeared on Palm Beach Post: Trump wants to deport. But what about due process? | Opinion
Yahoo
20-05-2025
- Politics
- Yahoo
What Kristi Noem Gets Wrong About Habeas Corpus
Homeland Security Secretary Kristi Noem at a congressional hearing on Tuesday had a contentious exchange about habeas corpus, the constitutional right that allows people to challenge their imprisonment in court. Sen. Maggie Hassan (D–N.H.): What is habeas corpus? Noem: Well habeas corpus is a constitutional right that the president has to be able to remove people from this country— Hassan: No, let me stop you ma'am— Noem: —and suspend their right to, suspend their right to— Hassan: Excuse me, that's incorrect. Noem: President Lincoln used it. Habeas corpus is a fundamental civil liberty: It effectively forces the state to justify why it is detaining someone. It is, by definition, a check on the government, not a right it possesses. Noem is likely aware of this. The homeland security secretary told lawmakers at a different congressional hearing last week that immigration levels may justify suspending the protection. Giving her the benefit of the doubt, then, it's possible she meant to imply today that President Donald Trump needs to subvert that right in order to deport people. And perhaps that is also what she meant by her reference to former President Abraham Lincoln, who did not most famously "use" habeas corpus but rather suspended it during the Civil War without congressional approval—an action that was later found to be unconstitutional. Viewing the exchange in a light most favorable to Noem, it generally comports with the administration's position. Stephen Miller, the White House deputy chief of staff for policy, said earlier this month that Trump is "actively looking at" suspending habeas corpus for migrants. "The president of the United States," Noem said later in the hearing today, "has the authority under the Constitution to decide if it should be suspended or not." But that is highly constitutionally dubious, as Reason's Jacob Sullum wrote last week, for a few reasons. The first: The clause that allows for its suspension—"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"—is found in Article I of the Constitution, which governs Congress. The executive's powers are outlined in Article II. That is in large part why Chief Justice Roger B. Taney of the U.S. Supreme Court ruled in Ex parte Merryman (1861) that Lincoln had violated the Constitution when he unilaterally suspended the right, which, in terms of the present-day debate, the Supreme Court has also confirmed applies to people in the United States unlawfully. (Congress ultimately approved Lincoln's suspension in 1863, about two years after his initial decree.) Then there is the justification the Trump administration would have to invoke: that the U.S. is experiencing an "invasion," or that public safety is endangered so severely that it requires suspending a core constitutional protection. Whatever your views on immigration, the reference to invasion, as Sullum notes, has historically been understood (including in the courts) to reference literal warfare—a military attack, for example. The "public safety" invocation would likewise be extremely tenuous, particularly when considering, for example, the Supreme Court's ruling in Boumediene v. Bush (2008), which affirmed that Guantanamo Bay detainees, who were also noncitizens, had the right to habeas corpus. If terrorism suspects are entitled to those petitions, then it stands to reason so should people like Rümeysa Öztürk, the Tufts student who was recently released from detention after a federal judge ruled the government had provided no evidence for her imprisonment other than that she co-authored a pro-Palestine op-ed. Habeas corpus, and the Constitution broadly, protects unpopular people for a reason—and it protects them from the government. The president certainly has a prerogative to uphold the law. But that doesn't mean much if he and his administration engage in lawlessness to do so. The post What Kristi Noem Gets Wrong About Habeas Corpus appeared first on
