Habeas Corpus Crossroads
The Trump White House has moved from hints to a working blueprint. Yesterday, Deputy Chief of Staff Stephen Miller told reporters the administration is “actively looking at” suspending the writ of habeas corpus to detain and deport migrants without judicial review. He cited the Constitution’s suspension clause and called current immigration an “invasion.”
Habeas corpus is not just a privilege in a free society; it is a cornerstone of individual liberty, uniquely and expressly written into the 1787 Constitution itself at a moment during the Philadelphia convention when the nationalist drafters of the document were hesitant to specify any individual right. Nevertheless, Article I, Section 9 makes the point unmistakable:
“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.”
Congress alone can weigh those conditions. A president cannot.
History confirms the barrier. Lincoln’s 1861 suspension sparked Ex parte Merryman, where Chief Justice Roger Taney (yes, the Dred Scott guy) ruled the move unconstitutional; Congress later carved out a narrow, temporary exception for Lincoln, justifying it after the fact. Grant used that authority once, in 1871, to break the Ku Klux Klan in South Carolina. And no president has suspended the writ since. FDR never declared a suspension when he incarcerated Japanese Americans, which is some proof that a government can violate rights without erasing the text. After 9/11, the Supreme Court in Boumediene restored habeas to Guantánamo detainees, rejecting executive claims of unchecked detention.
Miller’s project is broader and also familiar. Once again, a member of this regime reinterprets “invasion” to mean immigration, converting civil enforcement into grounds for an emergency and potentially military rule. Federal judges—including several appointed by Trump—have already rejected that logic. But it is an argument of convenience, not fact, so what courts say is likely to make little difference.
The Patriot Myth offers no cover. While the British Parliament passed an act allowing for the suspension of habeas corpus in North America, there is no evidence that it was ever applied, which starkly contrasts with the projection of fear-as-reality that has become commonplace in popular perceptions of the Revolutionary War. But it did happen: by the Patriots. The historical record is saturated with large-scale detentions without trial, particularly by revolutionary governments against suspected loyalists. In fact, one such case, in which Massachusetts Patriots arrested and then imprisoned a suspected loyalist in the same Concord jail in which Henry David Thoreau would later spend a memorable night, was a major influence on Thoreau's thinking about liberty of conscience, civil disobedience, and a foundational distrust of the Constitution. The loyalist was Thoreau's great-uncle and the source of his freedom? A dramatic midnight breakout by Thoreau's own grandmother. The Patriots' own actions, then, serve as powerful historical warnings against abusive authority and disregard of the rule of law, to fulfill some sort of ideological expediency.
Because the rhetoric is characteristically clumsy, without much nuance, the plan is clear: erase the court’s role, hold people indefinitely, and represent the result as constitutional. After all, presidents have done it before. But if that line falls now, as part of the ongoing trajectory of this regime, there might be no meaningful curb on its expansion of state power.
The choice is ours: treat habeas corpus as the non-negotiable limit it was meant to be, or accept that in the United States of 2025 the executive decides who gets the law and who disappears outside it.
NOTE: The interpretation of the Thoreau connection is drawn from my forthcoming book, A Resistance History of the United States (Steerforth Press, 2026).
