Free Speech, Deportation, and the Suspension of Habeas Corpus
Suspending habeas corpus represents one of the most momentous steps the government can take, an elimination of a centuries-old legal protection against wrongful detention, celebrated by the framers and enshrined in the Constitution. It is generally accepted that only Congress, not the president acting alone, may lawfully suspend the writ.
Even President Trump—not known for fidelity to norms and traditions—has yet to suspend habeas. To the contrary, when Stephen Miller, the deputy White House chief of staff and chief architect of the administration’s deportation campaign, floated the idea of suspending habeas to circumvent Supreme Court rulings in the Alien Enemies Act cases, he encountered significant resistance within the White House. Some officials reportedly called the idea “insane,” while others worried that such a frontal assault on habeas would lead to major legal and political confrontation that could ultimately constrain, rather than advance, the administration’s immigration agenda.
The constitutional baseline is straightforward. The Suspension Clause provides that “[t]he 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.” As the Supreme Court explained in Boumediene v. Bush, the framers regarded habeas as a “vital instrument” to protect individual liberty, a judgment reflected in their care in specifying the “limited grounds for its suspension.” The constitutional text thus reflects a deliberate judgment that only the most exceptional circumstances can justify eliminating this vital judicial protection of individual liberty against unlawful detention.
Yet formal suspension is not the only way to thwart habeas corpus. The Trump administration’s efforts to detain and deport students, scholars, and others for their advocacy and participation in protests surrounding Israel’s war in Gaza show how habeas can be undermined without ever formally suspending the writ. With potential Supreme Court review over several of these cases looming—a certiorari petition in one of the lead cases is due in the Supreme Court on Sept. 21—it is important to consider what the Suspension Clause protects and why it remains so essential.
The Student-Scholar Habeas Cases
Three cases decided by federal appellate courts have emerged as the leading habeas challenges among noncitizens detained for protected First Amendment activity. In Khalil v. Trump, the first and most high-profile of the cases, federal immigration agents arrested Mahmoud Khalil, a lawful permanent resident and recent Columbia University graduate who was one of the main negotiators on behalf of pro-Palestine protesters on the Columbia campus in spring 2024. In Mahdawi v. Trump, immigration agents arrested Mohsen Mahdawi, another lawful permanent resident and Columbia student involved in pro-Palestine demonstrations, when he appeared at a federal immigration office for his naturalization interview. And in Suri v. Trump, masked immigration agents arrested Badar Khan Suri, an Indian national and postdoctoral scholar at Georgetown University, outside his home in Virginia based on his advocacy for Palestinian rights and criticism of U.S. support for Israel’s war in Gaza.
In all three cases, the government invoked a rarely used provision of the Immigration and Nationality Act (INA), asserting that the individuals were removable because their “presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States.” Because the government relied on otherwise lawful beliefs, statements, and associations, the statute required Secretary of State Marco Rubio to personally determine that each individual’s continued presence would “compromise a compelling United States foreign policy interest.”
The petitioners all maintain that their threatened deportation violates the First Amendment as well as the Due Process Clause. But their immediate habeas challenge is to their detention, not their removal. Within hours of each arrest, lawyers for the petitioners argued that their detention was unconstitutional because it was imposed in retaliation for their protected speech and association. Thus, while the underlying issue is whether the government may deport noncitizens, including long-time lawful residents, on the basis of First Amendment protected activity, the litigation has thus far centered largely on an antecedent question: whether those detained may invoke habeas to challenge their imprisonment while their removal proceedings play out.
The government argues that federal courts lack jurisdiction to hear the petitioners’ habeas challenges because Congress channeled them into the administrative immigration review process in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the REAL ID Act of 2005. It relies, in particular, on the “zipper clause” of 8 U.S.C. § 1252(b)(9), which provides that “[j]udicial review of all questions of law and fact, including interpretation and application of statutory and constitutional provisions, arising from any action taken or proceeding brought to remove an alien from the United States ... shall be available only in judicial review of a final order [of removal].”
According to the government, the petitioners’ detention claims “arise from” their removal proceedings because the asserted constitutional defect is the same: They claim that the government targeted them for both detention and removal because of their protected speech and associations. The petitioners’ requests for release, in the government’s view, are inextricable from their challenges to removal and therefore cannot proceed in habeas; instead, both claims must proceed initially through the administrative immigration review process—before an immigration judge and the Board of Immigration Appeals—and only then, after a final removal order, through a petition for review in the appropriate federal court of appeals.
So far, the litigation has accordingly proceeded on parallel tracks, with removal proceedings continuing in the immigration courts and with Article III courts separately considering the legality of the petitioners’ detention. That division has underscored how the two proceedings address distinct exercises of government power and provide different remedies: immigration courts determine whether a noncitizen may ultimately be removed; habeas determines whether the executive may lawfully imprison that person in the meantime. Eliminating the habeas track would therefore not only consolidate review in a single forum but also leave an immigration detention’s legality without meaningful judicial review while removal proceedings run their course.
The Current Circuit Split
The circuits have thus far split over the availability of habeas. In Khalil, the U.S. Court of Appeals for the Third Circuit ruled that Khalil’s challenge to his detention was “inextricably intertwined” with his challenge to removal and therefore had to proceed through the INA’s channeling scheme. The court emphasized Congress’s purpose of preventing “piecemeal litigation” and concluded that the statutory scheme afforded Khalil “a meaningful forum in which to raise his claims later on” through a petition for review of a final order of removal.
The Third Circuit did so while candidly acknowledging that this conclusion meant that even if Khalil ultimately prevailed on a petition for review, that process could not provide him any meaningful relief for what would have turned out to be months or years of unconstitutional detention. In the court’s view, that is simply the statute Congress wrote. The U.S. Court of Appeals for the Second Circuit reached the same conclusion in Mahdawi, declining to follow its earlier, nonbinding motions-panel ruling, which had held that there was likely habeas jurisdiction over a similar detention challenge.
Both circuit decisions overturned district court rulings that had allowed Khalil and Mahdawi to obtain release through habeas. Neither has yet been redetained: A stay of the mandate has preserved the status quo in Khalil pending further review. In Mahdawi, the Second Circuit sua sponte decided to rehear the case en banc, thus vacating the panel’s prior ruling. The potential consequences of the habeas jurisdictional rulings nonetheless remain stark: Absent the availability of relief in habeas—a question that the Supreme Court seems likely to resolve—the petitioners could be redetained while their removal proceedings continue and, if ordered removed by the immigration courts, potentially removed from the country before a federal court ever adjudicates their underlying constitutional claims.
The U.S. Court of Appeals for the Fourth Circuit reached the opposite conclusion in Suri. Drawing on Jennings v. Rodriguez, in which a Supreme Court plurality rejected a broad reading of § 1252(b)(9) that would have made certain detention claims “effectively unreviewable,” the Fourth Circuit rejected the argument that substantive overlap between the First Amendment issues underlying detention and removal precluded the petitioner from challenging his detention in habeas. Instead, the court focused on the distinct governmental action being challenged and the remedy sought: release from unconstitutional detention, not relief from removal.
Although the Suspension Clause has surfaced in these cases, it has not been given adequate consideration. The petitioners argue that if the INA is construed to eliminate habeas jurisdiction over their challenges to present detention, it would violate the Suspension Clause because the petition-for-review process does not provide an adequate and effective substitute for habeas. In particular, they contend that postponing Article III review until completion of removal proceedings leaves them without meaningful judicial review of the legality of their detention while it is occurring, the essential harm habeas is designed to address.
The Khalil majority rejected the Suspension Clause challenge based on a brief, conclusory assertion that eventual review through a petition for review provides a meaningful forum for Khalil’s claims (citing only a Second Circuit case addressing the adequacy of a minor feature of the petition for review process with respect to removal, not detention). The Mahdawi panel similarly gave the Suspension Clause cursory treatment. While it deemed the Suspension Clause argument inadequately developed because it appeared only in a footnote, the Second Circuit also rejected it on the merits, reasoning that Mahdawi had failed to show that the petition-for-review process was an inadequate substitute for habeas, including for purposes of developing the factual record necessary to adjudicate his constitutional claims. And while the Fourth Circuit in Suri recognized the critical role of habeas, it construed the INA to preserve the writ without engaging in a Suspension Clause analysis.
Thus far, the most sustained analysis of the Suspension Clause has come from separate opinions. Judge Cheryl Krause, dissenting from denial of rehearing en banc in Khalil, concluded that denying habeas “vitiates the Great Writ” and fails to secure the Suspension Clause’s protections, whereas Judge Steven Menashi, concurring in Mahdawi, rejected the Suspension Clause challenge based on the historical scope of the writ discussed in the Supreme Court’s 2020 decision in Department of Homeland Security v. Thuraissigiam.
The Suspension Clause should carry more weight, whether as a reason for construing the channeling provisions not to preclude habeas challenges to detention or, if such construction is not possible, for invalidating those provisions as an unconstitutional suspension of the writ. Thus, properly understood, the clause should have led the Second and Third Circuits to preserve habeas jurisdiction in Mahdawi and Khalil, rather than require challenges to present detention to await eventual judicial review of removal. While the Fourth Circuit reached the right result in Suri by construing the INA to preserve habeas, the Suspension Clause provides a further critical reason for that construction.
Suspension Without Suspension
The Suspension Clause embodies a bedrock presumption that habeas remains broadly available to test the legality of executive detention, reflecting what Lee Kovarsky describes as the framers’ understanding that the habeas privilege was “inviolable, except on conditions of suspension.” Breadth and flexibility have traditionally been the hallmarks of the writ’s reach and use. As Paul Halliday, the preeminent historian of habeas corpus, has explained, the writ’s “central premise” is to empower judges “to examine detention in all forms.” The writ’s availability has never turned on the government’s ultimate purpose in imposing custody and historically encompassed detention undertaken to remove or transfer a person from the country.
Even Thuraissigiam—wrongly decided, as I have argued elsewhere—does not dictate a different result. There, the petitioner, an asylum-seeker arrested just after crossing the U.S.-Mexico border, sought further review of an expedited removal determination so that he could pursue his asylum claim. The Supreme Court held that the Suspension Clause did not guarantee habeas review because, in the Court’s view, the historical core of the writ was to test the legality of detention and obtain release, whereas the relief that Thuraissigiam sought—further review of his asylum claim rather than release from custody—fell outside that historical core. Khalil, Mahdawi, and Suri, by contrast, involve the paradigmatic function of habeas: Individuals in executive custody asking an Article III court to determine whether the government may lawfully imprison them and to order their release if it may not.
The question therefore becomes whether Congress has provided an “adequate and effective” substitute for habeas—that is, whether it has preserved the essential protections of the writ in another form. The cases establishing this doctrine—United States v. Hayman and Swain v. Pressley—permit Congress to address practical considerations associated with habeas litigation as long as the writ’s essential protections remain unimpaired. In Hayman, Congress required collateral challenges to federal convictions under 28 U.S.C. § 2255 to be filed in the sentencing court rather than the district of confinement; the reform was not meant “to impinge upon prisoners’ rights” and provided “the same rights in another and more convenient forum.” In Swain, Congress shifted collateral review of District of Columbia convictions from federal habeas to a substantially equivalent remedy in the newly created Superior Court of the District of Columbia, while preserving habeas whenever that substitute proved inadequate or ineffective.
Hayman and Swain, moreover, concerned collateral challenges to convictions, not challenges to executive detention where, as the Supreme Court has emphasized repeatedly, the writ’s protections always “have been strongest.” More recently, in Boumediene v. Bush, the Supreme Court held that Congress’s substitute for habeas for alleged enemy combatants at Guantanamo Bay was constitutionally inadequate because it lacked critical features of the writ, including an adequate opportunity to develop a record necessary for meaningful federal judicial review.
Here, the alternative to habeas—review by an immigration judge followed by eventual review by a federal appeals court—is inadequate for several reasons. First, uncertainty continues over whether, and to what extent, the immigration process permits meaningful adjudication of the First Amendment claim underlying the detention, particularly the development of a factual record necessary to establish retaliatory motive. In Khalil, the immigration judges rebuffed efforts to develop the constitutional record and denied discovery into Rubio’s decision, while telling Khalil that he was in the “wrong court” to develop a factual record on his constitutional claims.
Although the government now maintains—including in Khalil itself—and the Second Circuit accepted in Mahdawi—that immigration judges may consider constitutional arguments in the course of removal proceedings, the government’s adoption of that position came only after Khalil had been denied the opportunity to develop his constitutional claim and does not resolve whether immigration proceedings provide the discovery and fact-finding necessary to adjudicate it. The scope of immigration judges’ authority and, critically, the capacity of immigration proceedings to permit the factual development necessary to adjudicate a retaliation claim thus remain murky. A habeas substitute cannot be adequate when it depends on such uncertainties and contingencies.
More fundamentally, eventual judicial review of removal cannot substitute for immediate judicial review of detention. Detention is a distinct constitutional injury, and a petition for review becomes available only after a final removal order, potentially months or years after the detention has begun. As Michael Dorf notes, the logic of the Second and Third Circuits would deny habeas whether the resulting detention lasted “16 days, 16 weeks, 16 months, or 16 years”—and what’s more, the executive effectively controls the timing of immigration proceedings. Vindication on an eventual petition for review, in short, cannot remedy an unconstitutional imprisonment that has already occurred. As the Fourth Circuit recognized in Suri, for a person challenging present detention, meaningful judicial review is effectively “now or never” (borrowing a phrase from an earlier Third Circuit case that the Khalil panel took awkward pains to distinguish). A scheme that leaves the legality of executive detention unreviewed while removal proceedings run their course therefore does not merely channel habeas into another forum; it creates a gap in the constitutional fabric of the writ.
This gap is especially troubling where detention is alleged to have been used to punish the exercise of First Amendment rights. Habeas protects liberty not just for its own sake but also because freedom from unlawful executive imprisonment can be indispensable to exercising other constitutional rights. First Amendment claims have a particularly close relationship to habeas: Imprisonment for constitutionally protected speech threatens two core constitutional freedoms, and the mere prospect of such imprisonment can chill protected expression in ways that eventual judicial vindication can never remedy.
It should come as no surprise, therefore, that the use of habeas to challenge imprisonment arising from political expression and dissent has deep historical roots. John Lilburne, a leader of the 17th-century Levellers, a movement advocating greater political and religious freedom, repeatedly invoked habeas against imprisonment by successive governments for his political and religious dissent. The First Amendment would offer considerably less protection if the executive could simply imprison its critics without meaningful judicial review, so long as it promised them a day in court months or years later.
As to whether the administrative process provides an adequate substitute for habeas in addressing the detention itself, the Mahdawi panel, in rejecting the claim that the administrative process was inadequate, pointed to the availability of a Joseph hearing before an immigration judge, ordinarily used when a noncitizen challenges his placement in a category subject to mandatory detention. But none of the noncitizens in these habeas cases was ever subject to mandatory detention; by statute, they are subject to permissive detention, but, by regulation, they are ineligible for a bond hearing. Even so, at such a hearing, the Mahdawi panel reasoned that a petitioner could demonstrate his eligibility for a bond hearing by showing that the government was substantially unlikely to sustain the underlying removal charge, including because Rubio’s determination violated the First Amendment.
But this remains an exclusively executive-branch administrative remedy and does not provide independent judicial review of a detention’s constitutionality. Its adequacy, moreover, depends on immigration judges being willing and able to entertain the constitutional claim and permit the factual development necessary to resolve it. The notion that an immigration judge at a Joseph hearing could consider a full-blown constitutional challenge to detention—the same kind of constitutional challenge that the immigration judges in these cases have refused to entertain at all with respect to the students’ removal—is without precedent and appears to be a creation of the Second Circuit panel. Reliance on a Joseph hearing is especially dubious, moreover, given the current institutional context: The administration has already removed more than 100 immigration judges while reshaping the corps through new hiring, prompting serious concerns about the independence of the immigration courts.
Habeas has long been celebrated as the great writ of liberty because it places the legality of imprisonment in the hands of judges rather than jailers. Its importance is underscored by cases such as Khalil, Mahdawi, and Suri, where the executive has seized individuals based on their political speech and advocacy, concealed their whereabouts from counsel and family, and transferred them in shackles across state lines to distant detention facilities. In such circumstances, habeas performs its most essential function: placing an independent judge between the individual and the executive that has imprisoned him. Allowing that protection to be extinguished simply because the executive ultimately seeks to remove the detainee from the country would turn the Suspension Clause on its head. It would allow the government to accomplish the functional equivalent of suspension without satisfying the extraordinary conditions the Suspension Clause requires and without facing the political costs of suspending the writ openly.
