Osler's Razor

Why Habeas Corpus Matters

By Mark Osler

We are a young nation with ancient roots. The very idea of democracy goes back to the Greeks, the idea of a constitution goes back to the Roman Republic, and my own object of fascination, clemency, was well-established at the time the Code of Hammurabi was written in the Babylonian Empire, 17 centuries before the birth of Christ. 

         Habeas corpus, too, was well established at the time our Republic was founded. Literally, habeas corpus is Latin for “you should have the body.” A writ of habeas corpus is a summons or court order, directed at the custodian of a jail or prison, demanding that a person be brought before the court so that the government can show a lawful authority for holding the prisoner. If the government can’t make such a showing, the prisoner is released. In short, it is a way for someone in custody to petition for a hearing at which they can challenge the lawfulness of their conviction. This ancient writ is now on our front pages, as the Trump administration threatens to suspend it, in order to accelerate deportations.

The Constitution’s Article I does not establish a right to habeas corpus so much as recognize its existence while limiting its suspension: “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.” ....

         Habeas corpus in England predated the 1215 Magna Carta, and originated in the legal context that existed at that time and for centuries thereafter. Three kinds of entities—the Monarchy, the Lords, and the Church—all had the ability to jail people. In part, habeas corpus allowed the King or Queen to challenge one of the other entities when they jailed someone. It has evolved over time to principally be used by the incarcerated person themselves and (as in medieval England) can now be used in the United States by prisoners of one sovereign (a state) to appeal to another (federal courts) for release. 

         Together with the Sixth Amendment’s requirement that those in custody “be informed of the nature and cause of the accusation,” habeas corpus protects a fundamental right that sits at the dead-center of the rule of law: The government cannot confine your body without stating a good reason for doing so. It is that right that separates the United States from places where people rot in jail simply for being on the wrong side of those in power. It is a part of civilization as we know it.

         And it is that fundamental right now threatened by the Trump administration. Trump aide Stephen Miller told reporters that suspending the writ of habeas corpus is something the administration “is actively looking at” because the writ can be suspended “in time of invasion.” Their hope is that if habeas corpus were suspended, there could be mass imprisonment and deportation of non-citizens living in the United States without the need to show any proof at a hearing.

         There is a lot wrong with Miller’s thinking. First, there is no invasion happening. Even if you bought into the MAGA line that we were being “invaded” by undocumented immigrants during the Biden administration, the fact acknowledged by all sides and bragged about by the administration is that such immigration is now at its lowest levels in decades (a trend that began while Biden was still president). The Constitution does not authorize suspension of habeas corpus because there was an “invasion” several months or years ago, but during the exigency of that invasion itself. 

At any rate, to call an increased level of undocumented immigration an “invasion” is hyperbole, not fact. An invasion is a military incursion by a foreign entity, not the choice of individuals to emigrate here. George Mason law professor Ilya Somin has astutely pointed out that if illegal immigration and drug trafficking by foreign nationals constituted an invasion, then we have been subject to such an invasion almost constantly for the past several decades and the framers of the Constitution certainly did not foresee allowing habeas corpus to be suspended at any time over such a broad span of time.

         The Constitution also requires that the interest of public safety requires the suspension of habeas corpus—and the presence of undocumented people in the U.S. simply does not present the kind of public safety threat that could justify suspending key rights. The truth is that undocumented immigrants commit fewer crimes per capita than citizens—even in Texas. According to the Cato Institute, in Texas the crime rate for “illegal” immigrants in 2018 was 782 per 100,000 people, while the crime rate for native-born citizens was 1,422 per 100,000 (documented aliens were safest of all, with a rate of 535 per 100,000). Yes, I know that you have seen stories of horrific crimes committed by “illegals” on Fox News—but the truth is that such crimes are committed much more often by people like me who were born here. 

         So, there is no invasion going on, there never was, and there is no special threat to public safety. Even with all that, there is another complication to Miller’s musings: based on the structure and text of the Constitution it is Congress, not the President, who has the ability to suspend habeas corpus. Article I, after all, establishes the powers of the Congress, and that is where the suspension of habeas corpus is discussed. This was at the center of a Civil War debate between President Lincoln and Chief Justice Taney, which Taney won. More recently, in 2004’s Hamdi v. Rumsfeld, a majority of the U.S. Supreme Court’s Justices agreed that it was Congress’s role to suspend habeas corpus. 

         It could be that Stephen Miller was only floating an idea, but even that is troubling—it reveals what the boundaries are that this administration would like to push. Here, it is a boundary marked by steel bars and the rule of law that keep any of us from being held in jail without due process.