In recent testimony before the U.S. House of Representatives, Homeland Security Secretary Kristi Noem suggested that current levels of undocumented immigration could provide a legal basis to suspend habeas corpus—the fundamental constitutional right to challenge unlawful detention. This claim, which echoes recent statements from former Trump advisor Stephen Miller, raises serious constitutional concerns.
At Saluja Law, we believe it is essential to clarify what habeas corpus is, why it matters, and why any attempt to suspend it outside of a constitutionally-defined emergency must be rejected.
What Is Habeas Corpus?
The writ of habeas corpus, often referred to as the “Great Writ,” is one of the oldest and most important rights enshrined in the U.S. Constitution. It ensures that anyone detained by the government has the right to challenge the legality of their detention before a neutral judge.
This right is not a luxury. It is a safeguard against tyranny.
Constitutional Basis
Article I, Section 9, Clause 2 of the U.S. Constitution provides:
“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.”
This clause is deliberately narrow. The framers of the Constitution reserved suspension of this right for only the most extreme situations—rebellion or invasion. These terms have historically been interpreted to mean organized, violent uprisings or military incursions that threaten the existence of the nation.
Undocumented immigration, while a politically charged issue, does not meet this standard.
Why This Matters Now
Secretary Noem, when asked if unlawful border crossings constitute an “invasion” justifying suspension of habeas corpus, replied, “I'm not a constitutional lawyer, but I believe it does.” That admission says it all.
Constitutional interpretation is not based on belief or political convenience. It is based on legal precedent and the careful balance of powers that defines our democracy. The idea that the president—any president—can unilaterally suspend one of the most basic protections of liberty based on immigration policy is not only legally flawed; it is dangerous.
Moreover, using wartime statutes like the Alien Enemies Act of 1798 to sidestep due process for asylum seekers and migrants is a gross distortion of the law and a direct threat to the rule of law itself.
Courts Have Already Rejected This Thinking
The Supreme Court has already pushed back. In April 2025, the Court reaffirmed that individuals facing deportation must have the opportunity to challenge their removal. Attempts to bypass due process—whether through mass deportations, expedited removal under wartime laws, or suspending habeas corpus—are unlawful.
Congresswoman Julie Johnson of Texas rightly pointed out during the hearing:
“You were intending to wrongfully deport people without access to a court hearing, without access to the rule of law.”
That is precisely why habeas corpus exists.
The Bottom Line
Suspending habeas corpus to expedite immigration enforcement is not just unconstitutional—it is un-American.
The Constitution does not grant the president carte blanche to trample civil liberties, especially under the pretext of a manufactured “invasion.” Courts, legal scholars, and the American people must remain vigilant to ensure that fear and politics do not erode our most fundamental rights.
At Saluja Law, we are committed to defending the rule of law. We urge everyone—regardless of political affiliation—to remember that the strength of our democracy lies in its checks and balances, not in executive overreach.
📞 If you or a loved one is facing detention or deportation, we are here to help you assert your rights under the law.
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