Can Trump Suspend Habeas Corpus?
One of the most important protections of individual liberty in common law jurisdictions such as the United Kingdom and the United States is the right to seek a writ of habeas corpus. It allows a person who is in custody to challenge the legality of their imprisonment. It requires the government to bring the person before the court to determine if confinement is lawful. Habeas has been an important tool in a variety of contexts—including challenges in criminal case and by the detainees at Guantanamo. It is also been a very important tool used by people detained for alleged immigration violations. In the past few months, it has been a critical tool used to stop illegal removals of immigrants facing deportation—or worse—by the Trump Administration.
It therefore came as no surprise to me that Stephen Miller told reporters last week that the Trump Administration was “actively looking at” suspending habeas corpus.
Can President Trump really do this?
No. And suspending habeas corpus is not the “get out of constitutional commitments” card that Miller seems to think it is.
A little history is important. In England, there was a sad history of citizens being detained without judicial process by the King who often ignore the writ. In response, Parliament enacted the Habeas Corpus Act of 1679. This ensured that there would always be available a judicial process for those detained by the king.
Our Founders were keenly aware of this history and the Constitution therefore limited the ability of the Federal Government to suspend the write of habeas corpus. Notably, they did this in the original Constitution, and not in the later Bill of Rights. In Article I, Section 9—which is entitled “Powers Denied Congress”—the Constitution states, “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.” Notably, his clause was intended to be a stringent limitation of suspension of the writ, and not an authority to do so.
There are several reasons why this clause prevents President Trump from suspending habeas corpus for immigrants. First, as Justice Amy Barrett noted in a 2014 law review article written when she was a Circuit Judge, “there is virtual unanimity in the view that the Constitution vests Congress alone with the power to suspend.” As she elaborates:
Scholars and courts have overwhelmingly endorsed the position that, Lincoln's unilateral suspensions of the writ notwithstanding, the Constitution gives Congress the exclusive authority to decide when the predicates specified by the Suspension Clause are satisfied. In other words, the President cannot exercise emergency power unless Congress authorizes him to do so. The presence of the Suspension Clause in Article I is the most important evidence that the decision to suspend rests with Congress. While the Clause, written in the passive voice, does not itself identify who has authority to suspend, its placement in Article I reflects an assumption that Congress is the branch to which the authority belongs.
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Because suspension is a means of defending the country in a national security crisis, it bears some resemblance to the package of decisions the President will simultaneously make with respect to military strategy. But for better or worse, the fact that the Constitution does not vest this power in the President reflects a judgment that this decision-one with a dramatic impact on domestic civil liberties-ought not be included in this package.
Thomas Jefferson sought to suspend the writ of habeas corpus to address the rebellion of Aaron Burr, but Congress declined to do so. The fact that Jefferson did not then attempt to unilaterally suspend the writ is powerful historical evidence that the Constitution did not allow him to do so. As Justice Barrett observed, President Lincoln tested this view in the early days of the Civil War when he unilaterally suspended habeas corpus in Maryland. This suspension of habeas corpus, however, was challenged in court. Justice Taney, sitting as a trial judge, ruled from the bench in Ex Parte Merryman that the President did not have the authority to suspend habeas corpus. This was an authority that the Constitution only gave Congress. Lincoln ignored this order. Ultimately, however, this Constitutional crisis was averted when Congress authorized suspension. All of the subsequent suspensions have been authorized by Congress.
Even if the President has this authority, the constitutional standard is a very tough one to meet. Not only must there be “Rebellion or Invasion”, but “public Safety may require” suspension. In the context of the Alien Enemies Act—which also requires an invasion before the President is granted power—the courts have uniformly rejected the Administration’s theory that we are suffering from an invasion. The decision by a Trump-appointed Judge in JAV v. Trump is instructive:
Article I, Section 9 prohibits Congress from suspending the writ of habeas corpus, “unless when in Cases of Rebellion or Invasion the public Safety may require it.” Although courts have not had to define what constitutes an invasion supporting the suspension of the writ, the use of “Rebellion,” which refers to an armed uprising, suggests that both terms refer to a military attack, either from within or without. In addition, the Constitution in Article I, Section 10, Clause 3 also provides that a state may not “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” This use of the related term, “invaded,” expressly concerns warfare.
The historical records that the parties present, supplemented by the additional records that the Court reviewed, demonstrate that at the time of the AEA’s enactment, the plain, ordinary meaning of “invasion” was an entry into the nation’s territory by a military force or an organized, armed force, with the purpose of conquering or obtaining control over territory.
In addition, the public safety requirement is not met here. As Trump himself proudly proclaims, border crossings are now quite low. The number of those that even the Trump Administrations claims are dangerous invaders who need to be deported is at most in the thousands. This is in sharp contrast to the rare circumstances in which the writ was suspended, where the numbers that might need to be detained was much, much larger. Moreover, habeas corpus requires that the government have custody of the person. It is hard to imagine how public safety requires that there be no judicial process when the the allegedly dangerous people are all in custody. Our courts are operating and available to hear the habeas cases, and would not be overwhelmed by the numbers of habeas cases. This is in mark contrast to the very few instances when the writ was suspended by Congress in the past.
I have no doubt that this Administration will seek every avenue for preventing judicial review of their mass deportation agenda. They may even try to suspend the writ of habeas corpus. Given the test of the Constitution—and the history of the suspension of the writ—I am confident that even the current Supreme Court would reject a unilateral Presidential suspension of the writ.
It is also important to note, however, that suspension of habeas is merely the suspension of one procedure for challenging unlawful detentions—albeit a critically important procedure. The Trump Administration is overreading what they gain by suspending habeas. Suspending the writ does not eliminate an immigrant’s due process—they still have constitutional rights, most notably the right to due process. Suspension is not the “Get out of Constitutional Obligations” trump card that the Trump Administration thinks it is. This was made clear in the Civil War decision of Ex Parte Milligan, in which the Supreme Court held that the suspension of the writ only meant that a person could be detained without charges, not tried and executed on the order of a military commission.
Even aside from constitutional requirements, Congress has, through the immigration laws, provided a process for contesting deportation—a process that includes ultimate review by federal courts. This statutory process is not affected by the suspension of the writ. And even for those that the Trump Administration is seeking to remove through the Alien Enemies Act and other creative notions, other avenues to challenge violations of constitutional rights, including the Administrative Procedures Act, remain potentially available.
To be clear, even though suspension of the writ may not accomplish what the Trump Administration wants to accomplish, suspension of the writ of habeas corpus would still be extraordinary and dangerous. While the alternatives may allow the assertion of due process rights before removal, these remedies likely would not be useful in challenging detention itself. They certainly have not been effective in challenging immigration detention in many cases. Suspension would remove an important tool for challenging unlawful detention that has existed longer than our Republic. Fortunately, courts will most likely rule that the conditions for suspension have not been satisfied, and that the President himself does not have the authority to suspend habeas corpus.