The Great Writ

Many, many observers have noted the explosion in habeas corpus cases in the past few months. Habeas corpus has been the primary mechanism by which those detained by ICE and Homeland Security for purposes of deportation have challenged their detention. Mother Jones recently reported that there were 24,403 habeas cases filed regarding ICE detentions … and counting. The first reaction by the author of a habeas corpus blog might be to see this as a good thing—the best way to emphasize the continuing importance of the Great Writ and fertile ground for an endless number of posts. Yet, I don’t see it this way at all. Rather, I see this as a reflection on the sorry state of the rule of law in the United States today. Let me explain why.

The writ of habeas corpus was never intended to be a blunt-force mechanism designed to right all the wrongs of a government that is ignoring the rule of law. Rather, it was meant to be a tool of surgical precision to attack those (hopefully) rare instances in which a few individuals make poor decisions, placing in question the legal rights of the occasional detainee. Some might say this characterization is clearly wrong, given the large number of habeas corpus petitions filed every year in which state (and federal) court prisoners challenge the constitutionality of their detentions. While it is true that habeas is the mechanism by which this “super appeal” is effected, we must recognize that this is a very specific type of habeas corpus that has evolved over time, both via case law and by statute. It is not the common law writ. The kinds of habeas petitions filed by those detained by ICE are very, very different from those challenging state or federal court convictions.

The ICE detainees aren’t quibbling about whether their trial was fair or whether a lower court ruling on a motion to dismiss was constitutional. Rather, they are asserting that the government doesn’t have the right to detain them at all—irrespective of the evidence or the process. Massive detentions without the color of law are, by definition, clear evidence of a government that is no longer governed by the limiting principles upon which a rule-of-law state depends. As Lord Dicey noted, in a rule-of-law state, “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” Not only are ICE detentions not predicated upon a distinct breach of law (as evidenced by the hundreds of detainees released by courts all across the country), but the process by which these detentions are occurring is not consistent with the “ordinary legal manner” in which detentions of this sort are to occur. This conclusion has been reached by reviewing courts with respect to nearly all of the student detainees about whom I have written in this blog.

 Lord Tom Bingham, former British Lord Chief Justice, also observed that in a rule-of-law state, “[m]inisters and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.” One is hard-pressed to argue that our government is currently satisfying this rule. Judge Paul Friedman, Senior District Court Judge in the Federal District Court for the District of Columbia, observed that the Department of Justice demonstrated, in “instance after instance … departures from this tradition” of public officials acting “in obedience to [their] duty.” As a study by Just Security noted, since January 20, 2025, the executive branch has routinely engaged in conduct that has prompted courts to raise grave concerns. In 34 cases, governmental attorneys’ or officers’ actions raised concerns about non-compliance with court orders. In 90 cases, courts expressed distrust of governmental information provided or representations made to the court, and in 91 cases, courts found governmental actors engaged in arbitrary or capricious administrative actions. Again, these are clear warning signals that our notions of the rule of law are in jeopardy.

This has not been the first time that habeas corpus has been used to try to curb the excesses of the executive—certainly, that is the whole purpose of the writ. In the prelude to the English Civil War, Darnell’s Case (also known as the Five Knights’ Case) dealt with the arbitrary detention, by Charles I, of a number of English knights of the realm as a means of encouraging them to loan the King money—against their will. While the court ruled against these knights, who sought a writ of habeas corpus, the failure of the judiciary to protect individual rights led, in part, to the English Civil War. In our own Civil War, the Lincoln administration took extreme measures to restrict the activities of those who opposed the Northern cause. Again, habeas corpus was used to challenge these measures, and in Ex parte Milligan, the postwar Supreme Court ruled against the military detention of civilians by the administration. This decision called into question the conduct of an executive led by a beloved and “martyred” president – but it was the right thing to do.  It is good that habeas corpus can be used to combat these executive excesses—but it should be a rare occasion when resort to habeas corpus is necessary. The rule of law depends upon this ultimate weapon, but it should not be one that is routinely relied upon. When it is—as it has become here in the last year or so—we must conclude that the rule of law is in jeopardy. Habeas corpus can be seen as the canary in the coal mine—hopefully we can bolster the rule of law before the canary dies.