Stephen Richer
Earlier this month, White House Deputy Chief of Staff Stephen Miller said that the Trump administration is “actively looking at” suspending the writ of habeas corpus for suspected illegal immigrants.
The constitutionally enshrined right of habeas corpus traces its origins back to the Magna Carta and it guarantees that those detained by the United States government can challenge that detention in court.
In Federalist Paper 84, Alexander Hamilton wrote that the “establishment of the writ of habeas corpus” is a “greater security to liberty and republicanism” than nearly any other provision in the Constitution.
Nearly 200 years later, the United States Supreme Court described the writ as “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”
Given the importance of habeas corpus in protecting the rights of the individual from the abuse of government power, it should come as no surprise that the Cato Institute has consistently defended the writ. In 2007, David Boaz listed it among the rights most “indispensable to securing all the others.” My criminal procedure professor, libertarian luminary, and Cato adjunct scholar Richard Epstein extolled the importance of the writ in 2008 and reminded readers of The New York Times that the writ extends to all “persons,” not just citizens.
Miller and the Trump administration base their alleged authority on Article 1, Section 9, Clause 2 of the US Constitution, which 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.”
And indeed, this provision, the “suspension clause,” has been used four times in US history. Once during the Civil War, once during Reconstruction when the Ku Klux Klan overran parts of South Carolina, once in the Philippines during a rebellion by the native population against US presence, and once immediately after the Japanese bombed Pearl Harbor.
In each instance, however, the president acted only with the approval of Congress—although in the case of Abraham Lincoln, who faced the outbreak of an actual civil war, the approval was given belatedly.
As my Cato colleague Mike Fox recently said on TV, if Miller and Trump try to suspend habeas corpus, they will likely lose in the courts.
Among other things, the government would have to overcome Justice Antonin Scalia’s opinion in Hamdi v. Rumsefeld (“Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I”). As well as both an unfavorable online article and an unfavorable law review article from Justice Amy Coney Barrett (“it does require Congress to decide … that an invasion or rebellion has occurred and that protecting the public safety may require the exercise of emergency power.”)
Additionally, Professor Marjorie Cohn of the Thomas Jefferson School of Law points out that the government will have to contend with four recent rulings from federal district courts that make clear that we are not currently suffering a “rebellion or invasion.” One decision from Texas stated, “surges in immigration do not constitute an ‘invasion’ within the meaning of the Constitution.” And a federal judge in Colorado called the government’s definition of invasion “unpersuasive.”
There’s no shortage of highly detailed legal takedowns of Miller’s comment. For example, see Georgetown University Law Professor Steve Vladeck’s article, Jacob Sullum in Reason, Bill Galston at the Wall Street Journal, or a piece in The New Yorker by Ruth Marcus.
I have nothing to say about the law beyond what Vladeck and others have already said.
But I will point out an amusing paradox that damages the government’s interests here, as well as in the Alien Enemies Act cases. At the same time that the government is making legal arguments that we are suffering an “invasion” and therefore can suspend habeas corpus or invoke the Alien Enemies Act, the government is also trumpeting that it has effectively put an end to illegal immigration.
In February, Miller claimed that illegal border crossing had decreased by 95 percent in the first 11 days of Trump’s second term, calling it “the biggest and most successful change in any area of law enforcement that this nation has ever seen.”
That same month, President Trump celebrated by saying that border crossings were “the lowest ever recorded.”
“Border czar” Tom Homan claimed that in the first two weeks of February 2025, illegal migrant encounters numbered only 359 per day, down from 4,800 per day in 2024.
So, even if we accept that large numbers of illegal border crossings constitute an “invasion”—the courts don’t—then the administration is still on shaky legal grounds because it tries to have its cake and eat it too. Which is it? Are we being invaded? Or has the administration already largely secured the border?
My recommendation: drop the threats, respect long-established legal rights, work with Congress to improve our immigration policies and border security, and then brag about that if successfully accomplished.
But I won’t hold my breath.