In a chilling echo of America’s darkest periods, senior White House adviser Stephen Miller said the Trump administration is “actively looking at” suspending the writ of habeas corpus — the constitutional guarantee that protects individuals from unlawful detention.
Though framed as a measure targeting undocumented immigrants, the suspension of this right would have sweeping implications, particularly for Black Americans.
Miller’s comments, delivered to White House reporters, referenced the constitutional allowance for suspension “in Cases of Rebellion or Invasion.” He suggested that undocumented immigration qualifies as such an invasion, a justification that many legal scholars argue is not only flimsy but dangerously broad.
“So, I would say that’s an option we’re actively looking at,” Miller asserted.
But Black Americans know all too well what the suspension of habeas corpus has meant in the past — and what it could mean now.
From the Fugitive Slave Law of 1850, to the mass incarceration era, legal mechanisms that stripped individuals of the ability to challenge their detention have disproportionately targeted African Americans.
As documented in the Chicago-Kent Law Review, the Fugitive Slave Law empowered federal commissioners to detain alleged fugitives without jury trials, barred testimony from the accused, and denied habeas petitions. It turned free states into hunting grounds for slave catchers and erased legal safeguards for both escaped slaves and free Black people.
“We’ve been here before,” said civil rights historian Dr. Jessica Parr, writing for the African American Intellectual History Society. “Black mobility and personhood have long been policed through laws that criminalized movement and stripped individuals of due process. Habeas corpus was often the last line of defense.”
In the late 18th century, writs of habeas corpus were used by Black parents to rescue their children from enslavement, as seen in the 1786 case of Cato and his daughter Betsey in Pennsylvania. The state Supreme Court issued writs to challenge their unlawful detainment — a precedent-setting moment in the fight for Black freedom.
Suspending this right today, even if initiated under the pretense of immigration control, risks opening the door to broad and unchecked detentions.
Amanda Tyler, a legal historian writing in the Harvard Law Review, warned that “the consistent political and legal understanding of the Suspension Clause was that it prohibited the government from detaining persons… outside the criminal process… even in wartime, except under the auspices of a valid suspension.”
The founding generation viewed such a suspension as a power of last resort, strictly limited to true national emergencies.
History also shows that once habeas corpus is suspended, Black communities often suffer first and worst.
During Reconstruction, President Ulysses S. Grant had to suspend habeas corpus to crush the Ku Klux Klan’s terrorist campaign against newly freed Black citizens. Congress passed the Ku Klux Klan Act in 1871, giving Grant authority to suspend the writ, but only after extensive investigations revealed how the Klan used violence and intimidation to subvert Black freedom.
Today, with the same legal mechanism under review — not to protect Black lives, but to expand the government’s power to detain — civil liberties groups and legal scholars warn that the consequences could be dire.
“It was never just about the undocumented,” said a legal advocate who reviewed Miller’s remarks. “When you remove due process protections, you create a legal vacuum — and historically, Black people get swallowed by that vacuum.”
A Political Maneuver Targeting Vulnerable Populations
In an era where Black protestors, immigrants, and political dissenters are routinely surveilled and criminalized, suspending habeas corpus could mean unchecked state power to detain without trial.
President Abraham Lincoln’s controversial suspension of habeas corpus during the Civil War — under the grounds of rebellion — still drew intense backlash.
The Gilder Lehrman Institute notes that Lincoln himself faced accusations of violating the Constitution, even while arguing that desperate times require desperate measures.
Yet even then, protections eventually returned.
What’s being proposed now is not a response to national rebellion — it is a political maneuver targeting vulnerable populations and potentially all dissenting voices.
“The Constitution is just a scrap of paper to me,” one Roosevelt-era official infamously said when defending the internment of Japanese Americans. That mentality — ignoring constitutional restraints to satisfy political expediency — now seems alive and well in the Trump administration.
As the nation watches whether the White House will move forward with suspending one of the Constitution’s most sacred protections, many Black Americans are watching not with surprise — but with historical clarity. Many have asked what protection, then, would remain if habeas corpus is swept away? For a growing number, the answer is clear: none.
“The right to challenge detention saved lives during slavery,” Tyler wrote in the Harvard Law Review. “When you suspend habeas corpus, you don’t just risk injustice. You invite it.”
