The writ of habeas corpus is an ancient writ, which the British called “The Great Writ,” which derives from a Latin phrase that means “It is commanded that you have the body.”
It requires the government to specify legitimate reasons in court for holding incarcerated individuals or release them if it cannot. It is available both to citizens and noncitizens residing with the United States.
Constitution outlines when habeas corpus may be suspended
Article I of the Constitution deals with the legislative branch of government. Section 9, Clause 2, of this Article provides that “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 writ has been suspended only four times in U.S. history. The only time a president attempted a suspension was when President Abraham Lincoln did so during the Civil War in an action that Congress, which had not been meeting at the time, later vindicated. It was also suspended in some counties in South Carolina during the violence that accompanied congressional Reconstruction after the Civil War; during an insurrection in the Philippines in 1905; and in Hawaii after the Japanese attacked the American naval base at Pearl Harbor.
Habeas corpus challenges to Trump’s immigrant detentions
A number of immigrants have filed challenges to arrests and detentions through this writ during President Donald Trump’s crackdown on illegal, or allegedly illegal, immigration in 2025.
Individuals who have been incarcerated in state courts after convictions can also file the writ of habeas corpus in federal courts alleging that they were convicted without receiving due process or for exercising freedoms, such as those in the First Amendment and other provisions within the Bill of Rights, that the Constitution has protected.
Stephen Miller, the White House deputy chief of staff, has recently suggested that Trump might invoke suspension of the writ of habeas corpus on the theory that illegal immigration constitutes an “invasion” under the language of Article II. This argument is undercut by the fact that the administration claims that it has closed U.S. borders, effectively stopping any such invasion that was occurring. It is also undermined by the general scholarly consensus that only Congress has the power to invoke this authority and by the fact that Miller seems to be holding out the prospect of suspending the writ only if “the courts do the right thing or not” (Vasquez 2025).
That suggests that the Trump Administration, which has also suggested that judges blocking Trump’s actions should be impeached and removed from office, may be using the threat simply as a way of pressuring judges to reject such petitions by immigrants and accept its view that immigrants have invaded the United States and that it has power over immigrants under the Alien Enemies Act of 1798.
Long before the current immigrant controversy, Professor Michael L. Wells argued that courts should be especially solicitous of writs of habeas corpus that were based on violations on the First Amendment (1979). He based this argument in part on the view that upholding the incarcerations of individuals who were arrested for exercising such rights could have a chilling effect on other individuals wishing to express their views. Similar arguments have been made on behalf of injunctions designed to protect First Amendment rights.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.