Judicial review for migrants detained on U.S. military bases

The Washington Post reports today that Fort Bliss, a U.S. Army base in El Paso, Texas, is preparing to hold undocumented migrants. 

The Trump administration’s plan to install large-scale detention facilities on U.S. military bases is taking shape, with Fort Bliss preparing to detain at least 1,000 undocumented immigrants starting this month on the Mexican border, U.S. Immigration and Customs Enforcement officials said Wednesday.

The sprawling Army post in El Paso is expected to hold 5,000 people in tentlike facilities at full capacity, which would turn it into the largest detention facility in the United States for civil detainees. Last month, Defense Secretary Pete Hegseth also approved the temporary use of Camp Atterbury in Indiana and Joint Base McGuire-Dix-Lakehurst in New Jersey to house several thousand migrants before they are deported.

Can those detained on U.S. military bases challenge their detention? The question involves the constitutional right to habeas corpus. The Constitution states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases in Rebellion or Invasion when the public Safety may require it." U.S. Const., art. I, sec. 9. 

Because the habeas right and its suspension clause appear in Article I, which covers the powers of Congress, it has been generally assumed that only Congress can suspend habeas. This is why it was so controversial when President Abraham Lincoln acted on his own authority to suspend habeas during the Civil War. See Curtis Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice at 176 (2024). In 1863, Congress ratified Lincoln's suspension retroactively. See 12 Stat. 755 (Mar. 3, 1863). 

But Presidents can suspend habeas when Congress delegates its suspension authority to the President. Congress has done this seven times since the Civil War. See Amy Coney Barrett, Suspension and Delegation, 99 Cornell L. Rev. 251, 252 (2014). Each was a specific grant, not an open-ended delegation.

Using delegated suspension authority, Presidents have suspended habeas three times: during Reconstruction in South Carolina in 1871 when the Ku Klux Klan was overwhelming civil authority; in the Philippines in 1905 to suppress an insurrection when the U.S. occupied the territory; and in Hawaii in 1941 after Pearl Harbor. See Bradley at 177. 

Notably, Congress has never suspended habeas or delegated habeas-suspension authority in the post-9/11 era. The U.S. Supreme Court held that the President could not suspend the writ on his own, Hamdi v. Rumsfeld, 425 U.S. 507 (2004), and that the detention regime in Guantanamo Bay unlawfully deprived detainees of their habeas rights since there had been no suspension or delegation. Boumediene v. Bush, 553 U.S. 732 (2008). Hamdi was 8-1; Boumediene a closer 5-4, with some justices less inclined to extend habeas rights beyond U.S. territory. 

That backdrop helps frame the habeas right by those who may end up in military detention in the United States or Guantanamo Bay. Four key takeaways: 

First, migrants detained on military bases in the United States have the habeas right to seek judicial review of their detention in federal courts. 

Second, neither the President nor executive officials can suspend the habeas right on their own. No claim of emergency or public safety will suffice for this; the President needs Congress's permission. 

Third, while the Supreme Court could eventually overturn its Boumediene precedent to limit habeas abroad (indeed, this is a stated objective of many in the conservative legal movement), Hamdi rests on firm ground. 

Finally, Congress has the power to act to either suspend habeas or delegate suspension authority to the President. But neither seems likely since Congress has not exercised those muscles in decades, and there is no demand signal for it from the White House.