After a string of high-profile setbacks in federal court for the president’s immigration agenda, the Trump administration claims that it’s considering suspending habeas corpus, a key legal tool for challenging criminal and immigration detentions.
What is habeas corpus?
Habeas is a legal procedure that allows people who have been detained by the government to challenge their detention in court. If a criminal defendant or an immigrant detainee believes that the government lacks legal authority to detain them, they can petition a court to order their release. The remedy is available to both citizens and noncitizens in the United States.
In Latin, habeas corpus means “you should have the body.” It requires a judge to literally have a detainee physically present to weigh the legality of their confinement. It is the government’s responsibility to prove that the individual’s detention is lawful, and if it fails, the person must be freed.
Habeas, which is sometimes called the Great Writ, dates back to 1215, when the Magna Carta was signed. It was conceived to guarantee protection from the king arbitrarily disappearing subjects to secret dungeons without just cause or due process.
The framers thought habeas was so vital to the preservation of liberty, justice, and democracy that they enshrined the mechanism in the Constitution: “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.”
What is habeas corpus used for?
Habeas corpus most often arises in the criminal justice context. For example, it’s invoked when someone imprisoned for a state crime, such as theft or murder, believes that their continued detention violates federal law. States prosecute most crimes in the United States, but the federal Constitution guarantees basic rights to people accused of crimes, such as the right to be free from unreasonable search and seizure. Habeas ensures those rights are respected, serving as a basic check on state actions.
Habeas has also become a colloquial way to refer to any challenge to the legality of a conviction or a sentence that is not a direct appeal to a higher court. People convicted of federal crimes may challenge the legality of their conviction directly in a federal trial court, for example. This method is sometimes referred to as habeas corpus. And people in state prison may claim that their detention violates their state’s constitution, which may offer more protection than the federal one. These types of post-conviction motions are sometimes called “state habeas.”
With around 12,000 filed annually, habeas cases are relatively common. But winning them is challenging: Data is sparse but suggests a success rate of a little over 10 percent in capital cases and less than 1 percent in others. And even when a habeas claim does prevail, that still does not necessarily mean the person will immediately walk free. They may often be required to stand for a new, constitutionally sound trial.
What can be raised in habeas corpus petitions?
Habeas corpus is not unlimited. On the contrary, courts and Congress have repeatedly narrowed the remedy. In the criminal context, habeas is most effectively used when the legality of a person’s detention depends on facts that were unknown at the time of their convictions. Among other things, someone in state prison may argue that their attorney failed to adequately represent them at trial — in violation of the right to counsel — or that prosecutors illegally withheld key evidence — violating the right to due process.
In other cases, habeas can be a losing proposition, daunting to navigate, or both. For one, federal courts generally do not allow people to use habeas corpus to “relitigate” arguments that they raised at trial or legal theories that they could have raised in some other forum, such as in a state appeals court. Permitting those claims, judges and lawmakers have reasoned, would create a shortcut around state courts, undermining states’ interests in ensuring finality in their criminal prosecutions.
Congress has erected additional barriers. Under a 1996 law, federal courts will not overturn a state conviction through habeas — even if a constitutional right appears to have been violated — unless state court decisions upholding the conviction run significantly afoul of Supreme Court precedent. Over the years, this has led to troubling outcomes as federal courts decline to intervene in cases that many would consider unjust.
How is habeas corpus used in the immigration context?
Historically, habeas corpus could be used to challenge the validity of a deportation order under immigration law. In the 1990s and 2000s, however, Congress substantially limited this practice and created alternative pathways for challenging immigration law deportations.
These limitations have not affected immigrants’ ability to use habeas corpus to contest unlawful immigration detentions. For example, they can file a habeas petition to argue that they are being held without a legal basis, held for an unduly long period, or subjected to impermissible detention conditions. Nor have these limitations affected immigrants’ ability to use habeas corpus to contest deportations conducted under exceptional authorities outside of the immigration code.
How are habeas corpus petitions being used under the Trump administration?
Habeas petitions have been a vital instrument for challenging the administration’s immigration policies, particularly the president’s invocation and use of the Alien Enemies Act of 1798, a law that authorizes sweeping detentions and deportations of immigrants in wartime.
Since the War of 1812, courts have allowed immigrants to file habeas petitions to contest their detention or potential removal under the Alien Enemies Act, and the Supreme Court recently reaffirmed immigrants’ ability to do so. In these petitions, immigrants have historically argued that they were not “alien enemies,” that the law was improperly applied in peacetime, or that the law’s use had constitutional shortcomings — in other words, that the Alien Enemies Act could not serve as a legal basis for their detention or deportation.
Today, Venezuelan immigrants accused of being “alien enemy” members of the gang Tren de Aragua have filed habeas corpus petitions across the country raising these same arguments. So far, every court to consider an Alien Enemies Act case has granted some form of relief to the Venezuelan immigrants, deciding that the petitioners were not gang members, that the president had improperly invoked the law in peacetime, or that the attempted use of the law violated constitutional due process. These petitions have prevented the Trump administration from using the wartime law to conduct further deportations of Venezuelan immigrants without an opportunity for a court hearing. Other habeas petitions have sought the return of immigrants already deported under the Alien Enemies Act and other authorities, insofar as those immigrants, like Kilmar Abrego Garcia, have been held without legal basis in a Salvadoran prison at the direction of the Trump administration.
Habeas petitions have also been filed to challenge the administration’s immigration detentions, such as those of students Mahmoud Khalil and Rümeysa Öztürk. In these cases, the petitioners have argued that their apprehension was unconstitutional retaliation for their political speech and that there was no legal basis for detaining them during immigration processing. Courts have ordered the release of both Khalil and Öztürk.
Can the president suspend habeas corpus?
No, only Congress can suspend habeas corpus. Because the writ of habeas corpus has frustrated some of the president’s most aggressive immigration policies, members of the administration have discussed suspending it. But most legal experts agree that this is not an option for the executive branch. This is in part because the part of the Constitution that states when habeas corpus can be suspended (known as the Suspension Clause) comes in Article I, which lays out the powers of Congress.
While Congress alone has the authority to suspend habeas, it can’t do so at will; it can only suspend habeas “when in Cases of Rebellion or Invasion the public Safety may require it.”
Has habeas corpus ever been suspended?
Yes, habeas has been suspended four times in the nation’s history. President Abraham Lincoln did so in 1861 during the Civil War. That move was challenged in court and led to a constitutional showdown between the executive and judicial branches. Chief Justice Roger Taney wrote that only Congress had the power to suspend habeas, but Lincoln did not immediately defer to Taney’s ruling. The standoff was resolved two years later when Congress approved Lincoln’s suspension.
Congress passed suspensions three other times in specific locations: in 1871 in South Carolina during Reconstruction to curb violence by the Ku Klux Klan, in 1905 during a rebellion against the U.S. military in the Philippines when it was a U.S. territory, and in 1941 in Hawaii after the attack on Pearl Harbor.
