Over the past few weeks, there has been a growing debate nationally about statements from the Trump Presidential Administration about the potential suspension of a rule called “habeas corpus”.
The origination of this current discussion came when, on May 9, White House Deputy Chief of Staff, Mr. Stephen Miller, stated that the Trump administration was “actively looking at” suspending habeas corpus to expedite the deportation of undocumented migrants.
PC: Gage Skidmore, CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0, via Wikimedia Commons
For many following the news, both broadcast and print reports have made clear that this is widely seen as a very bad idea. According to Miller and the administration, they believe the influx of undocumented migrants qualifies as an “invasion.” Based on that, they argue the president can suspend habeas corpus for this group.
To get why this is such a big deal, though, it helps to look at where habeas corpus comes from. This isn’t just legal jargon—it’s a centuries-old check on government power, built to make sure people can’t just be locked up without a good reason.
The idea of habeas corpus—Latin for “you shall have the body”—goes back to English common law. It was meant to stop kings from tossing people in prison just because they felt like it. The rule says: if the government detains you, they have to explain why in front of a judge. No reason? You go free. Over time, it became one of the cornerstones of individual rights, eventually written into the U.S. Constitution.
And because it’s such a cornerstone, the invocation of suspending the rule has been rare and, when invoked, imposed quite judiciously. It is such an important decision that habeas corpus has only been suspended less than a single handful of times in the 249 years the United States has existed.
One of the first suspensions of habeas corpus came during the Civil War. President Abraham Lincoln pulled the trigger on it in 1861 to deal with Confederate sympathizers in border states—basically saying the Union couldn’t afford the luxury of due process while fighting to survive.
The last time habeas corpus was suspended in the U.S. directly connects to the place this blogger—and many others—call home: Hawaiʻi .
After Pearl Harbor on December 7, 1941, when the Japanese Navy attacked the naval base at Pearl Harbor, things in Hawaiʻi got real fast. The military took over under martial law, shut down the civilian courts, and replaced them with military tribunals. Rights? Pretty much put on pause in the name of national security (sound familiar?). At first, people went along with it—it was wartime, after all. But when things settled down and the courts came back online, the whole setup didn’t hold up. In Duncan v. Kahanamoku, the Supreme Court ruled it unconstitutional. Bottom line: even in crisis, there are limits.
PC: National Archives and Records Administration, Public domain, via Wikimedia Commons
And since then, while other presidents have tried to suggest suspending habeas corpus in times of crisis, such as events happening after the attack on the United States on September 11, 2001, the idea of actual suspension wasn’t seen as serious.
At least, until now.
With the Trump administration, they are of the mindset that there is, indeed, an invasion by a foreign force on the United States through the border crossing of thousands of migrants without any immigration processing. They have, in turn, defined the invasion clause to include this, and therefore think they can invoke a suspension.
Except there is one little flaw in what the current administration would like to impose to what the rule of law says. That being the lack of a declaration of war by Congress, which would give the power of suspension to the President, as Franklin Roosevelt did after Congress declared war against Japan on December 8, 1941.
One way around this is for the administration to ask congressional allies, like Senate Majority Leader John Thune and House Speaker Mike Johnson, to formally declare war on illegal immigration. But that, too, is a bad idea.
Squashing this idea further, this blogger suspects that even Johnson and Thune see it as a non-starter. Because even with a declaration of war and the theoretical power to suspend the rule of law for swift arrests, there are limits. Hawaiʻi’s case shows us that if the Trump administration ever pulls the trigger on such a suspension, the courts will quickly step in to assess its constitutionality.
And beyond that, Congress can’t even pass a basic budget right now, so the odds of them declaring war on immigration? Slim to none. But that’s a subject for another time.
In the end, while the rhetoric around immigration may be escalating, the law and history remind us that guardrails still exist. And for now, the last time habeas corpus was suspended in the United States was in Hawaiʻi, during World War II.
Politics Hawaii with Stan Fichtman is a recipient of a 2023 Hawaii Society of Professional Journalist award. This year, the publication is once again nominated for recognition. Awards will be announced on July 30, 2025.