Being arrested and detained without cause or a hearing in the U.S. has become more likely now than at any time in recent history.
And while incidents seem limited to immigrants here without authorization, more and more U.S. citizens and people who are here legally are seeing their rights taken away.
A federal appeals court ruled Friday that the government can detain and deport immigrants here legally, without ever giving them a court hearing to make their case. Since the Trump administration began its deportation push, some 1.6 million immigrants have lost their legal status, according to a December report by National Public Radio.
But a bigger threat has been the Trump administration’s pondering the suspension of the writ of habeas corpus enshrined in Article 1, Section 9 of the Constitution that requires a court hearing for anyone arrested by authorities.
These threats must be met urgently by the people and Congress.
The move to suspend habeas corpus was only thwarted by an objection of a conservative White House lawyer who convinced Trump to reject suggestions by Deputy Chief of Staff Stephen Miller to suspend the right during its immigration crackdown, according to an investigative report by The New York Times.
President Donald Trump had considered suspending the writ as early as spring 2025 as part of the effort to implement his deportation agenda. He asked staff to study the issue and was motivated by the idea that ignoring the courts could speed up deportations.
Miller was the driving force behind the push with a goal of seeing how far the administration could push presidential power, according to the Times’ report.
White House lawyer and secretary Will Scharf wrote a secret memo to Chief of Staff Susie Wiles in 2025 advising strongly against trying to suspend the writ of habeas corpus. Scharf pointed out suspending the writ was likely illegal and has in the past only been used when the country has been invaded or is otherwise under attack.
The conservative lawyer, who defended Trump against the classified documents case and did much legal work for the presidential immunity case before the Supreme Court, was worried more about the flimsy legal case that would be brought to suspend the writ causing significant more legal troubles for the immigration agenda.
“The history of habeas corpus dates back to the very dawn of English common law,” Scharf said in his memo to Wiles. “Denial of habeas corpus rights was a key grievance underlying the American Revolution, and the right to apply to the federal courts for habeas review dates to the beginning of the republic.”
Scharf argued throughout history all three branches of government had not interfered with habeas corpus, adding “doing so only in the direst of circumstances, and typically with respect to very limited categories of individuals.”
Other White House insiders called suspending the writ “insane,” according to the Times’ report.
Suspension of habeas corpus, removing the right for anyone jailed to have a hearing, had not been used since the attack on Pearl Harbor with the next biggest case being President Abraham Lincoln’s suspension of the right during the Civil War. Two other instances of suspending the writ occurred in some South Carolina counties where Confederate soldiers were still attempting to fight against the Union in 1871 and in 1905 in the Philippines after Spain ceded the country to the U.S. at the end of the Spanish American War.
Presidents do not have the authority to suspend the writ, according to the Brennan Center for Justice. Lincoln’s action was challenged legally, but he eventually got congressional backing.
Even the U.S. Supreme Court has ruled “enemy combatants,” such as those detained indefinitely at Guantanamo Bay during the 911 crisis and subsequent wars, were entitled to a court hearing.
But today’s Supreme Court is much different than that of the early 2000s. Today’s court seems decidedly partisan and deferential to the president. Few would be surprised if it decided to expand the definition of when habeas corpus could be suspended and by whom.
Trump eventually relented and did not go forward with the risky legal move in 2025, no thanks to Miller, who is not looking beyond expanding the power of the Trump administration over people and other institutions of democracy.
But we should not be comforted by this one-time rebuff of Trump’s and Miller’s ideas. We have seen that Trump, and particularly Miller, are not so concerned about the legal rights of immigrants or others they have jailed.
That is why Congress needs to act to more clearly define the restraints of presidential power and make abundantly clear that suspension of habeas corpus should be rare, not given to one leader, but lie with the elected representatives of the people.
The right to a hearing after arrest by the government is enshrined in the Constitution. Without it, we have no freedom.