The future of habeas corpus has been pushed into the spotlight as
President Donald Trump has been involved in discussions inside his administration over potentially taking the extreme step of suspending the procedure.
What is habeas corpus?
Habeas corpus is a legal principle that allows people who believe they are being unlawfully detained or imprisoned to petition for their release in court.
Immigrants and rights groups have filed habeas petitions in recent months
as Trump has tried to speed up deportations as part of his immigration agenda.
Still, habeas petitions are notoriously difficult to win in federal court, and it will be a challenge for most immigrants to obtain lawyers.
How serious would suspending habeas corpus be?
Lee Kovarsky, law professor at the University of Texas and expert on
habeas corpus, said it would be a “national historical disaster.”
“The executive could just detain you, and there would be no recourse,” he said. “Obviously they would do it to try to detain certain non citizens, but there’s no reason why it’s limited to them.”
White House deputy chief of staff Stephen Miller said Friday the administration was “actively looking at” suspending habeas corpus and it “depends on whether the courts do the right thing or not.”
But the Constitution allows habeas corpus to be suspended only when “in Cases of Rebellion or Invasion the public Safety may require it.”
“The Constitution makes clear that suspension of habeas corpus is to be reserved for actual rebellion or invasion posing the most dire threats to public safety. And Congress has never passed a law authorizing
deportations without any court involvement, as Miller suggests,” CNN
senior legal analyst and former federal prosecutor Elie Honig said.
Kovarsky said the reason why suspension of habeas corpus is so restricted “is precisely because it’s so severe.”
“You have no right, to a court, to say that you’re being unlawfully detained. So in a way, the cash value of your substantive rights is zero
if you don’t have a judge to evaluate them,” he said.
What has the Supreme Court said about habeas corpus?
The Supreme Court issued a murky, unsigned order on April 7 allowing Trump
to use the centuries-old Alien Enemies Act to speed up deportations for
now while at the same time, the court said migrants subject to deportation under the act were entitled to notice and an opportunity to challenge
their removal through federal habeas corpus petitions, marking a partial
win for migrants.
Following the Supreme Court’s decision, the American Civil Liberties Union filed a series of habeas lawsuits seeking to protect identified clients as well as “similarly situated” Venezuelans who could potentially be targeted
under the Alien Enemies Act.
The Supreme Court also issued a rare overnight order on April 19th where a majority of justices blocked the Trump administration from deporting a
group of immigrants in Texas.
When has habeas corpus come up in other cases?
Habeas corpus has been used in US courts including over issues with
detaining alleged enemy combatants at Guantanamo Bay, Cuba, in recent
years. The Supreme Court initially ruled in 2008 that detainees at the Guantanamo prison have the right to habeas corpus.
In one case, a federal judge ruled in 2021 that the detention of one
detainee being held at the US military prison in Guantanamo Bay was
unlawful. The judge granted a petition for a writ of habeas corpus to Asadullah Haroon Gul, who was accused of being a member of an extremist group.
Gul, whom the US went on to repatriate to Afghanistan, became the first detainee at the Guantanamo Bay prison to win a habeas petition in 10
years.
Another high-profile case related to habeas corpus involves Mahmoud
Khalil, the Palestinian activist and legal permanent resident who was detained by immigration officers in March. Khali filed a habeas corpus petition to challenge the legality of his detention, and his case still
faces legal challenges as he faces deportation.
Has habeas corpus been suspended before?
Habeas corpus has been suspended only four times in the history of the US, including by former President Abraham Lincoln during the Civil War.
The other three times include “in eleven South Carolina counties overrun
by the Ku Klux Klan during Reconstruction; in two provinces of the Philippines during a 1905 insurrection; and in Hawaii after the bombing of Pearl Harbor,” according to the National Constitution Center.
https://www.cnn.com/2025/05/10/politics/habeas-corpus-explained
On 5/10/2025 1:34 PM, slothe wrote:
The future of habeas corpus has been pushed into the spotlight as
President Donald Trump has been involved in discussions inside his
administration over potentially taking the extreme step of suspending the
procedure.
What is habeas corpus?
Habeas corpus is a legal principle that allows people who believe they
are
being unlawfully detained or imprisoned to petition for their release in
court.
Immigrants and rights groups have filed habeas petitions in recent months
as Trump has tried to speed up deportations as part of his immigration
agenda.
Still, habeas petitions are notoriously difficult to win in federal
court,
and it will be a challenge for most immigrants to obtain lawyers.
How serious would suspending habeas corpus be?
Lee Kovarsky, law professor at the University of Texas and expert on
habeas corpus, said it would be a “national historical disaster.”
“The executive could just detain you, and there would be no recourse,” he
said. “Obviously they would do it to try to detain certain non citizens, >> but there’s no reason why it’s limited to them.”
White House deputy chief of staff Stephen Miller said Friday the
administration was “actively looking at” suspending habeas corpus and it >> “depends on whether the courts do the right thing or not.”
But the Constitution allows habeas corpus to be suspended only when “in
Cases of Rebellion or Invasion the public Safety may require it.”
“The Constitution makes clear that suspension of habeas corpus is to be
reserved for actual rebellion or invasion posing the most dire threats to
public safety. And Congress has never passed a law authorizing
deportations without any court involvement, as Miller suggests,” CNN
senior legal analyst and former federal prosecutor Elie Honig said.
Kovarsky said the reason why suspension of habeas corpus is so restricted
“is precisely because it’s so severe.”
“You have no right, to a court, to say that you’re being unlawfully
detained. So in a way, the cash value of your substantive rights is zero
if you don’t have a judge to evaluate them,” he said.
What has the Supreme Court said about habeas corpus?
The Supreme Court issued a murky, unsigned order on April 7 allowing
Trump
to use the centuries-old Alien Enemies Act to speed up deportations for
now while at the same time, the court said migrants subject to
deportation
under the act were entitled to notice and an opportunity to challenge
their removal through federal habeas corpus petitions, marking a partial
win for migrants.
Following the Supreme Court’s decision, the American Civil Liberties
Union
filed a series of habeas lawsuits seeking to protect identified
clients as
well as “similarly situated” Venezuelans who could potentially be
targeted
under the Alien Enemies Act.
The Supreme Court also issued a rare overnight order on April 19th
where a
majority of justices blocked the Trump administration from deporting a
group of immigrants in Texas.
When has habeas corpus come up in other cases?
Habeas corpus has been used in US courts including over issues with
detaining alleged enemy combatants at Guantanamo Bay, Cuba, in recent
years. The Supreme Court initially ruled in 2008 that detainees at the
Guantanamo prison have the right to habeas corpus.
In one case, a federal judge ruled in 2021 that the detention of one
detainee being held at the US military prison in Guantanamo Bay was
unlawful. The judge granted a petition for a writ of habeas corpus to
Asadullah Haroon Gul, who was accused of being a member of an extremist
group.
Gul, whom the US went on to repatriate to Afghanistan, became the first
detainee at the Guantanamo Bay prison to win a habeas petition in 10
years.
Another high-profile case related to habeas corpus involves Mahmoud
Khalil, the Palestinian activist and legal permanent resident who was
detained by immigration officers in March. Khali filed a habeas corpus
petition to challenge the legality of his detention, and his case still
faces legal challenges as he faces deportation.
Has habeas corpus been suspended before?
Habeas corpus has been suspended only four times in the history of the
US,
including by former President Abraham Lincoln during the Civil War.
The other three times include “in eleven South Carolina counties overrun >> by the Ku Klux Klan during Reconstruction; in two provinces of the
Philippines during a 1905 insurrection; and in Hawaii after the
bombing of
Pearl Harbor,” according to the National Constitution Center.
https://www.cnn.com/2025/05/10/politics/habeas-corpus-explained
An excellent review of the subject. Thanks for posting. Personally, I think that the influx of TdA and MS-13 gang members along with the ten
or more million invaders that Biden-Harris and Mayorkis let in on their
watch constitutes an invasion and warrants treating it as such. As
former governor of Colorado Dick Lamm said, "A country without borders
is no longer a nation."
Personally, I think that the influx of TdA and MS-13 gang members
along with the ten or more million invaders that Biden-Harris and Mayorkis let in on their watch
constitutes an invasion
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