Stefan Jeremiah/AP Photo
A crowd gathers in Foley Square, outside the Manhattan federal court, in support of Mahmoud Khalil, March 12, 2025, in New York.
Under the Constitution and federal law, individuals may challenge the legality of their detention in a court of law by filing a writ of habeas corpus. It is perhaps the most important protection preventing state actors from arbitrarily tossing people in jail indefinitely. At its core, habeas corpus provides a structural ballast in the preservation of liberal democratic values, and extends to both citizens and noncitizens. In addition to being one of the few rights mentioned explicitly in the original body of the Constitution, habeas is one of the oldest rights in the Anglo-American common-law tradition, dating back to before the Magna Carta of 1215, and supported by hundreds of years of legal precedent.
On May 9, White House deputy chief of staff Stephen Miller said the Trump administration is “actively looking at” whether to suspend habeas corpus. According to Miller, “a lot of it depends on whether the courts do the right thing or not.” The offhand yet alarming comments come as the Trump administration continues to fight a losing battle in the courts, which have lodged a wrench in its mass deportation plans.
The Constitution specifies that the right of habeas corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,” though it does not specify any procedure for doing so.
“The Great Writ,” as it is traditionally called, has been suspended four times since the ratification of the Constitution, each of them involving actual rebellions or invasions, which demonstrate the thorny practical and moral issues such situations create. For instance, as the National Constitution Center explains, President Abraham Lincoln unilaterally suspended habeas corpus in the early days of the Civil War in 1861, in response to threats against United States troops in Maryland that threatened to cut off Washington, D.C. One slave owner who had blown up important bridges was arrested and held without trial.
In response, Supreme Court Chief Justice Roger B. Taney, author of the infamous Dred Scott v. Sandford decision, ruled in his capacity as a circuit court judge (as justices were required to serve on occasion in those days) in Ex Parte Merryman that only Congress has the authority to suspend habeas corpus. Lincoln ignored the ruling, arguing that because Congress was in recess, allowing traitors to run free during open rebellion was senseless. It “can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion,” he wrote in response. Still, Congress later approved of Lincoln’s action with the Habeas Corpus Suspension Act of 1863.
“It is the fundamental job of the judiciary to stand up to this kind of government manipulation of our basic rights.”
During the Reconstruction Era, President Ulysses S. Grant secured congressional authorization to suspend habeas corpus in parts of South Carolina in which the Ku Klux Klan and other white supremacist groups were attempting to crush an incipient multiracial democracy through terrorist threats and violence. Grant did crush the Klan, though, alas, Reconstruction-era democracy eventually fell to such tactics. The Roosevelt administration also suspended it in Hawaii after the bombing of Pearl Harbor in 1941.
The last example is less savory. In 1905, military governors suspended habeas corpus in the Philippines to quash an indigenous uprising against American colonialism.
One may argue about the appropriateness of these previous suspensions. But it is absolutely beyond question that America in 2025 is suffering neither an invasion nor a rebellion.
In January, President Trump issued a flurry of executive orders seeking to invoke the Alien Enemies Act (AEA) and Immigration and Nationality Act (INA). Earlier this month, federal courts handed down a series of court rulings discrediting the narrative his administration has manufactured to deport undocumented immigrants and expel legal permanent residents for dissenting against the government. In April, U.S. District Court Judge for the District of Colorado Charlotte N. Sweeney issued a temporary restraining order in D.B.U. v. Trump, which blocked the deportation of over 100 undocumented immigrants detained at the U.S. Immigration and Customs Enforcement (ICE) processing center operated by the private prison company GEO Group in Aurora, Colorado, to El Salvador.
The detainees were held in connection with the Trump administration’s claim that Tren de Aragua, a Venezuelan gang implicated in a range of illicit activities by U.S. law enforcement agencies, posed a significant threat to national security and should be considered an invading force under the AEA. Not only is it facially preposterous to argue that a foreign-based criminal gang operating on American soil—a practically continuous occurrence since the mid-19th century at least—is tantamount to invasion, but it turns out that the vast majority of the deportees have no criminal record whatsoever. As my colleague Maureen Tkacik explains, the whole Tren de Aragua panic was started by a Colorado slumlord’s PR firm, which leveraged an isolated incident of violent crime into a phantom full-scale invasion.
Sure enough, judges have tended to view the “invasion” narrative with skepticism. On May 6, Judge Sweeney granted a preliminary injunction requiring the federal government to notify individuals of their deportation at least 21 days in advance, further determining that the Trump administration’s “argument and the authority marshaled in support of it are unpersuasive.” Federal court judges in New York and Texas also concluded that such an application of the AEA exceeds the scope of the law.
By design, the habeas defense offers protection to those belonging to out-groups from persecution by the state, but it has never been a panacea. Historically, the Great Writ has been weaponized to uphold slavery, undermine tribal sovereignty, and enforce discriminatory immigration laws. Despite this, it has proved to be an instrumental tool for political dissidents in contesting their detentions, particularly for foreign nationals who have been retaliated against for engaging in First Amendment–protected activities. While there have been numerous instances of retaliation against advocates of Palestinian rights under the Trump administration, perhaps the most high-profile habeas corpus petition is that of lawful permanent resident and Columbia University graduate Mahmoud Khalil.
Khalil, who is currently detained at a GEO Group–run ICE processing center in Jena, Louisiana, was the lead negotiator for student activists participating in the Gaza Solidarity Encampment at Columbia University last year. As chronicled in the documentary film The Encampments, the demonstration ignited a nationwide protest movement against higher education’s complicity in the genocide being carried out by Israel against the Palestinian people.
“The logic used by the federal government to target myself and my peers is a direct extension of Columbia’s repression playbook concerning Palestine,” Khalil wrote in an April 4 op-ed for the Columbia Spectator. “In the 18 months since the genocidal campaign in Gaza began, Columbia has not only refused to acknowledge the lives of Palestinians sacrificed for Zionist settler colonialism, but it has actively reproduced the language used to justify this killing.”
On March 8, plainclothes agents from the Department of Homeland Security (DHS) apprehended Khalil at his Columbia University apartment. Since then, his lawyers have challenged his detention in immigration court and federal court. The immigration case, which is playing out in Louisiana, is set to proceed after Assistant Chief Immigration Judge Jamee Comans deemed him removable on April 11.
In the federal case, Khalil’s lawyers have filed multiple petitions seeking his immediate release under the habeas defense. On April 29, U.S. District Court Judge for the District of New Jersey Michael Farbiarz ruled against the Trump administration’s request to dismiss Khalil’s habeas corpus petition or relocate the venue for the proceedings to Louisiana. What followed was another failed attempt by Trump’s legal team to obtain permission to appeal the ruling, which the Third Circuit Court of Appeals denied on May 6.
“It is the fundamental job of the judiciary to stand up to this kind of government manipulation of our basic rights,” Brett Max Kaufman, senior staff attorney at the American Civil Liberties Union, said in a statement. “We hope the court’s order sends a strong message to other courts around the country facing government attempts to shop for favorable jurisdictions by moving people detained on unconstitutional immigration charges around and making it difficult or impossible for their lawyers to know where to seek their immediate release.”
The rationale for Khalil’s detention is more or less based on vibes rather than actual evidence. In a memo submitted to Judge Comans on April 10, Secretary of State Marco Rubio argued that Khalil’s continued advocacy for Palestinian rights would undermine ongoing policy efforts to combat antisemitism and protect Jewish students. Rebellion or invasion that is not.
Rubio made clear his position—and that of the Trump administration—on the movement for Palestinian rights at a press conference in March: “If you’re a green card holder, you’re legally in the United States … unless you’re some student visa holder who is a sympathizer of some terrorist organization and is running around in our streets like a lunatic, burning down buildings and attacking students at universities. If you’re one of these lunatics that’s going to put on a mask over your face and break into a student union center and harass students—we wouldn’t have let you in in the first place.”
The Trump administration has shown its willingness to pursue “the largest deportation operation in American history” by any means necessary—even if that means uprooting livelihoods, using state power to crush dissent, or defying the Supreme Court.
You don’t have to be a lawyer to understand that the president is obligated to uphold the Constitution.
