02-06-2025
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.
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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
