What is habeas corpus, and why is Trump's government doing all it can to suspend it?
Habeas corpus, an 800-year-old principle in the US constitution designed to prevent wrongful imprisonment, could be suspended by the Trump administration, as the president continues his vendetta against migrants in the US.
Listen to this article
Read time: 4 mins
In brief…
- Suspending habeas corpus would remove a major legal hurdle to Trump's deportation of migrants in the US, but this has only happened previously in history during times of conflict, or when the US has been under invasion.
- But there are people in America who consider immigration an invasion of the US, with former Trump adviser Brian Lanza telling The News Agents that he is among those people, and understands Trump's "frustration" at the courts preventing his deportation goals.
- The News Agents say actions such as these threaten to disrupt the very fabric of America, and shows the Trump's administration's determination to circumvent official frameworks that block these.
What’s the story?
One of Donald Trump’s top aides, Stephen Miller, has said the president is ‘actively looking’ at suspending the legal principle of habeas corpus, removing one of the longest standing - and final - safeguards against arbitrary detention in the United States.
But what does the term actually mean?
‘Habeas corpus’ literally translates from Latin as ‘you should have the body’. It is a legal order - or writ - for a person detained to be physically brought before the court, granting prisoners the right to challenge their detention in person.
It’s a key principle in the US constitution, dating back some 800 years to the Magna Carta - and is designed to stop wrongful imprisonment, which might explain why the White House wants it gone.
As part of President Trump’s crackdown on illegal immigration, the Supreme Court ruled last month that his proposed deportations under the 1798 Alien Enemies Act were legal - handing the administration a huge victory.
The court said the principle of habeas corpus has to be adhered to where people were being detained, giving those arrested the right to challenge their detention.
Miller and the Trump administration want habeas corpus gone to block potential deportees from having the ability to challenge their deportation.
This wouldn’t be the first time it’s been suspended - Abraham Lincoln did so during the Civil War and it was also suspended in Hawaii after the attack on Pearl Harbour.
But the US constitution states that habeas corpus should not be suspended unless “in cases of rebellion or invasion the public safety may require it.”
Whilst the US isn’t currently undergoing rebellion or invasion, Miller’s threats to trigger its suspension are rooted in the idea that America is under attack by illegal aliens.
Some Americans consider immigration an ‘invasion’ of the US
But some people in the US do believe that high numbers of migrants entering the US illegally does constitute an "invasion".
They include Brian Lanza, a political adviser to Trump during his 2016 and 2024 campaigns, who says he has concerns surrounding his children sharing the same neighbourhoods as "illegal aliens".
"I would call it an invasion," he tells The News Agents.
"Anytime you have around nine million people crossing your borders in a four year window – illegally, you know – I'm comfortable calling it an invasion.
Reports suggest there were eight million "migrant encounters" in the US during Biden's presidency.
"It is an invasion of a vast majority of criminals coming to the United States to inflict harm here. They're not coming here for good reasons."
Data from the American Immigration Council suggests that higher numbers of migrants in any given area may in fact reduce crime rates, and these people are less likely to commit crimes than those born in the US.
Lanza says he shares the president's "frustration" with what he considers “interference from the courts”.
"I don't want to suspend habeas corpus, but I want to be clear, what's taking place at the border was an invasion, and these illegal aliens are manipulating our laws to try to stay in the United States," Lanza adds.
"When Stephen Miller talks about suspending habeas corpus, he talks about suspending it – not for law abiding citizens, not for people who came to this country – only for illegal aliens who have no right to be here."
What’s The News Agents’ take?
Emily Maitlis says in floating the idea of suspending habeas corpus, the Trump administration is simply looking for more tools to achieve its goals – no matter the moral, or legal, implications.
“The fact that the Trump administration is talking about doing this now is starting to allow people to say they really don't have much care for the rule of law, for human rights,” Emily says.
“And this is the architecture, the furniture that keeps America on its axis.”
But with people such as Miller and Lanza helping Trump shift the narrative, through comparisons between the movement of people to world-changing events such as Pearl Harbour, that axis is looking increasingly unstable.
“As soon as you start saying America is under attack, it allows you to change the rules in ways that wouldn't be possible otherwise,” Emily adds.
Jon Sopel says shifting the language before shifting the rules will blindside many Americans into following the MAGA viewpoint on this contentious and complicated situation.
“What the administration is trying to do is absolutely clear,” Jon says.
“It doesn't want to do something which people can then turn around and say: ‘Oh, my God, you are flouting the US Constitution.’
“What they're doing is going around the back. It's going around the back way to find any legal mechanism whatsoever that will allow you to do something which, in normal times, most people would think: ‘What? You can’t do that’”.