The Potential Suspension of Habeas Corpus in America: A Legal Explainer
On May 9, 2025, White House Deputy Chief of Staff Stephen Miller informed reporters that the administration of President Donald J. Trump is “actively looking at” the possibility of suspending the writ of habeas corpus in the deportation of deemed-illegal immigrants.[1]
This post explains the writ of habeas corpus, its place in Canadian and American law, and the implications if the White House announcement were implemented.
The Writ of Habeas Corpus in Canada
Known as the “Great Writ of Liberty”,[2] habeas corpus is a prerogative writ whose origins are “shrouded in the dim past”.[3] It can be traced back at least to the Magna Carta, which stated that “no man shall be arrested or imprisoned… except by the lawful judgement of his equals or by the law of the land.”[4] Writing extrajudicially, Justice Robert Sharpe (as he then was) succinctly explained the writ in its “traditional form of review”:
The writ is directed to the gaoler or person having custody or control of the applicant. It requires that person to return to the court, on the day specified, the body of the applicant and the cause of his detention. The process focuses upon the cause returned. If the return discloses a lawful cause, the prisoner is remanded; if the cause returned is insufficient or unlawful, the prisoner is released. The matter directly at issue is simply the excuse or reason given by the party who is exercising restraint over the applicant.
Section 10(c) of the Charter of Rights and Freedoms guarantees the right to habeas corpus, providing that everyone has the right “on arrest or detention… to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” This provision guards against arbitrary detention and affirms a person’s right to challenge the legality of their imprisonment before a court. In May v. Ferndale Institution,[6] the Supreme Court of Canada explained that habeas corpus is a “crucial remedy” in the pursuit of two other fundamental rights guaranteed in the Charter: (1) the right to liberty of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (s. 7 of the Charter); and (2) the right not to be arbitrarily detained or imprisoned (s. 9 of the Charter).[7] A rich body of jurisprudence has developed around s. 10(c) of the Charter and the writ of habeas corpus, which the Supreme Court of Canada recently discussed in John Howard Society of Saskatchewan v. Saskatchewan (Attorney General).[8]
There is no specific provision in the Canadian Constitution that provides for the ability for habeas corpus to be suspended. However, s. 10(c) of the Charter is subject to s. 1,[9] which provides that the rights and freedoms guaranteed by the Charter are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The right for the validity of detention to be determined by habeas corpus can therefore be limited if a state infringement of the right is justified under the framework set out in R. v. Oakes.[10]
The Writ of Habeas Corpus in the United States
Habeas corpus is also a well-established principle in American law, and Canadian courts have, on occasion, borrowed from seminal U.S. decisions when considering the writ.[11]
Early Americans advocated for inclusion of the writ into Anglo-American law before America’s independence from Great Britain to protect against arbitrary detention from the Crown.[12] Section 14 of the Judiciary Act of 1789 states that all U.S. courts “shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.”
The Habeas Corpus Act of 1867 further expanded the federal courts’ jurisdiction to issue writs of habeas corpus “in all cases where any person may be restrained of their liberty in violation of the Constitution, or any treaty or law of the United States.”[13]
The Suspension Clause in the U.S. Constitution
The U.S. Constitution entrenches the right to habeas corpus but provides that the right may be suspended in cases of “Rebellion or Invasion” (the “Suspension Clause”).
The United States has suspended the writ of habeas corpus four times since independence: nationally during the American Civil War; in eleven South Carolina counties during Reconstruction; in two provinces in the Philippines during a 1905 insurrection; and in Hawaii after the bombing of Pearl Harbour. During the American Civil War, President Lincoln suspended the writ without Congressional permission, which sparked controversy. On all other occasions, Congress invoked the Suspension Clause.[14]
During the American Civil War, the Federal Court in Ex Parte Merryman considered the legality of President Lincoln’s decision to unilaterally authorize the suspension of the writ of habeas corpus. The Court ruled that “the privilege of the writ could not be suspended except by act of Congress” and the President’s attempt to do so without the approval of Congress was invalid.[15] The Court commented that the Suspension Clause fell within Article 1 of the Constitution, demonstrating an intent to vest the power solely with Congress. If the power was intended to be held by the executive, it would have been found in Article 2 of the Constitution, which enumerates the powers conferred upon the executive branch.
President Lincoln ignored Ex Parte Merryman, determining that it was both necessary and constitutional for him to suspend the writ without the approval of Congress.[16] He later backtracked and ordered the release of all political prisoners—subject to a few exceptions—and offered them conditional amnesty. Nevertheless, President Lincoln would once again suspend the writ, igniting further political backlash.
The controversy culminated in the passing of the Habeas Corpus Suspension Act of 1863 (the “Suspension Act”), which authorized the President “during the present rebellion” to suspend the writ “whenever in his judgement the public safety may require it.”[17] The Suspension Act sought to absolve the President and his subordinates of liability for suspending habeas corpus without prior congressional approval.[18] It also provided for a qualified release of prisoners who had been arrested without recourse to habeas corpus during President Lincoln’s unilateral suspension of habeas corpus. The executive power to suspend habeas corpus granted under the Suspension Act expired upon the conclusion of the Civil War; the Habeas Corpus Act of 1867 was passed shortly after the war ended.
After the American Civil War, the U.S. Supreme Court in Ex Parte Milligan affirmed Ex Parte Merryman, emphasizing the constitutional limits of executive power and the importance of procedural safeguards, especially during times of war or national emergency.
More recent American cases have affirmed that the power to suspend the writ of habeas corpus lies exclusively with Congress. In Hamdi v. Rumsfeld, Justice O’Connor, writing for a six-justice majority of the Supreme Court, held that “absent suspension of the writ by Congress, a citizen detained… is entitled to this process.”[19]
Implications if Habeas Corpus Were Suspended Without Congressional Authority
If the President suspended habeas corpus by executive order based on “the public Safety” “in Cases of Rebellion or Invasion”, absent other protections: (a) the detaining authority of any person in America would not be required to provide a publicly stated reason for detention; and (b) traditional due process for detained individuals would be suspended.
Given the weight of precedent requiring congressional authority to suspend habeas corpus in America, legal challenges would likely be forthcoming. If the U.S. Supreme Court ruled—against the weight of existing precedent—that the President could suspend the writ without congressional authority, the next question would be the degree of deference owed to the President’s determination that a Rebellion or Invasion has occurred.
[1] https://www.theguardian.com/law/2025/may/09/end-habeas-corpus-detention-trump-stephen-miller
[2] May v. Ferndale Institution, 2005 SCC 82, at para. 19 [“Ferndale Institution”].
[3] Re Storgoff, [1945] S.C.R. 526, per Rand J.
[4] Ferndale Institution, at para. 19, citing the Magna Carta, cl 39.
[5] Sharpe, Robert J., The Law of Habeas Corpus, 2nd ed. (Oxford: Clarendon Press, 1989), at p. 23. See also Ferndale Institution, at para. 21, where the Supreme Court referred to this language.
[6] Ferndale Institution, at para. 22.
[7] A decision considering Charter rights in the context of habeas corpus is currently under reserve at the Supreme Court of Canada: see SCC File Number: 41132.
[8] See John Howard Society of Saskatchewan v Saskatchewan (Attorney General), 2025 SCC 6, at paras. 42-44.
[9] For a consideration of this issue with respect to habeas corpus, see, e.g., Baroud v. Canada (Minister of Citizenship & Immigration) (1995), 22 O.R. (3d) 255.
[10] R. v. Oakes, [1986] 1 S.C.R. 103; see also R. v. Ndhlovu, 2022 SCC 38, at para. 118.
[11] Ferndale Institution, at para. 21, citing Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243.
[12] Amy Barrett & Neal K. Katyal, “The Suspension Clause”, at para. 3: <https://constitutioncenter.org/the-constitution/articles/article-i/clauses/763>.
[13] “Congress Limits the Supreme Court’s Jurisdiction: <https://www.visitthecapitol.gov/artifact/hr-605-act-amend-act-establish-judicial-courts-united-states-habeas-corpus-act-1867-july>
[14] Amy Barrett & Neal K. Katyal, “The Suspension Clause”, at para. 3: <https://constitutioncenter.org/the-constitution/articles/article-i/clauses/763>
[15] Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861).
[16] Congressional Globe, Thirty-Seventh Congress, First Session, Appendix (1861), at pp. 1–4.
[17] Section 1 of the Habeas Corpus Suspension Act of 1863: <https://andyreiter.com/wp-content/uploads/military-justice/us/Laws%20and%20Decrees/United%20States%20-%201863%20-%20Habeas%20Corpus%20Act.pdf>
[18] Section 4 of the Habeas Corpus Suspension Act of 1863.
[19] Hamdi v. Rumsfeld, 542 U.S. 434 (2004).
