The Great Writ – Habeas Corpus into the Twenty-First Century

At a hearing in Congress on May 20, 2025, U.S. Senator Maggie-Hassan (D-NH) asked Homeland Security Secretary Kristin Noem: “What is habeas corpus?” She responded: “Well, habeas corpus is a constitutional right that the President has to be able to remove people from this country ….” Secretary Noem’s response is by no means an accurate description of habeas corpus under the U.S. Constitution.

Section 9 of Article I of the Constitution provides:

The term “habeas corpus” literally translates as “you should have the body,” and the Writ of Habeas Corpus amounts to a legal order, known as a writ, ordering that a detained person, “the body,” be brought before a court by the person having custody, and that the government then show legal cause for the imprisonment.

Historical Background

The roots of the Writ can be traced as far back as the Magna Carta, signed by King John in 1215 and setting forth certain rights of the people versus the King. Included in the Magna Carta is a provision that “no Freeman shall be taken, or imprisoned . . . but by lawful Judgment of his Peers, or by the Law of the Land.”  Magna Carta, 1215.  The evolution of the Writ of Habeas Corpus itself as a mechanism for protecting civil liberty came about in the 17^th Century. In 1679, the British Parliament passed the Habeas Corpus Act. The Act imposed deadlines for sheriffs and jailers to respond to the writ, among other things.  By this point, the Writ of Habeas Corpus was firmly established in Great Britain.

Adoption of the Writ in the U.S.

The importance of the Writ of Habeas Corpus was recognized expressly in the Constitution. Alexander Hamilton wrote in the Federalist Papers that “the practice of arbitrary imprisonments, have been in all ages, the favorite and most formidable instruments of tyranny.”  Hamilton then cited William Blackstone, English jurist and author of Commentaries on the Laws of England, who described the writ as a bulwark of the British Constitution, standing against such arbitrary imprisonment. See The Federalist Papers at 350 (Lizard Ink Publishers 2022).

In the Judiciary Act of 1789, the U.S. Congress provided that justices of the U. S. Supreme Court and the judges of the U.S. District Courts “have power to grant writs of habeas corpus for the purpose of inquiry into the cause of confinement,” but only for persons in federal confinement.  The Habeas Act of 1867 expandedthe powerof the federalcourts to make it clear that, in addition to the powers already conferred, the courts of the United States had the power “to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.” This would include persons in state custody.

Suspension of the Writ

Historically, Abraham Lincoln suspended the Writ during the Civil War but was found not to be authorized to do so without Congressional authorization, which authorization was later retroactively granted. See generally W. Rehnquist, All the Laws But One (Knopf 1998). The Writ was also suspended during the Second World War in Hawaii after Pearl Harbor and again when Japanese Americans were incarcerated and confined to relocation centers. In 1988, Congress issued a formal apology and provided compensation to the survivors of the Japanese incarceration, recognizing the internment as a violation of civil rights stemming from racial prejudice, war hysteria, and political failure.  See Civil Liberties Act of 1988, Public Law 100-383.

Most recently, Steven Miller, White House Deputy Chief of Staff, told reporters that the Administration was “looking at” the possibility of suspending the Writ of Habeas Corpus,citing the “Rebellion or Invasion” exception as possible grounds. The Administration has not, as yet, declared the writ suspended, but the Administration has been accused of disregarding court orders to bring arrested persons before the court pursuant to the Writ. Such disregard is of grave concern and a serious threat to this fundamental constitutional protection.

The Writ of Habeas Corpus may be suspended, but that is the exception, not the rule, and only when there is “Rebellion or Invasion” and the public safety requires it. Reliance on these terms, “Rebellion or Invasion,” as grounds for suspending this fundamental right, in the context of anything occurring in the U.S. at this time, would be unsupportable under the plain meaning ascribed to those words, either in September of 1787, when the Constitution was signed, or in September of 2025, 238 years later. 

Further, no threat to the public safety exists today in connection with any such non-existent “Rebellion or Invasion.” Reliance on these terms would amount to no more than a pretext that, if allowed to stand, would subvert the fundamental constitutional protection against unlawful, arbitrary imprisonment.

Conclusion

The Writ of Habeas Corpus is the law of this land and a bulwark of our Constitution, protecting all persons in this country against arbitrary imprisonment without due process.  It definitely is not, as Secretary Noem described it, “a constitutional right that the President has to be able to remove people from this country…”

We all should be on guard. There is no “Rebellion or Invasion” in the United States at this time and talk from high-ranking government officials suggesting that the Writ of Habeas Corpus may be suspended is a palpable threat to the Rule of Law.

We cannot and should not take lightly any threat to our most fundamental protection against unlawful imprisonment: the Writ of Habeas Corpus.