The U.S. Department of Justice recently asked federal lawmakers for the emergency power to detain suspects indefinitely—and without judicial review. Though shocking, that request follows the lead of recent executive orders  by the governors of California, New York, Illinois, and other states, which have effectively put entire populations under house arrest without the benefit of charges being brought or trials being held.

If like tens of millions of Americans you have been trapped in your home by one of these COVID-19 lockdown orders, separated from loved ones and deprived of a livelihood, you might have wondered: Can your constitutional rights thus be negated without judicial review? The answer, thanks to the ancient remedy of habeas corpus: Not legally.

The constitutional right of habeas corpus gives those confined under color of law the right to have a court review the reasons for and conditions of confinement. If not satisfied, the court must order the confinement to end. Applying these principles and applicable law to the COVID-19 crisis makes clear:  US courts must consider the habeas corpus writs of Americans who have been placed under the functional equivalent of house arrest without having been charged or tried.

The Latin, habeas corpus, translates into English as, you may have the body. The phrase refers to what a judge may allow—surrendering a prisoner to custody—only after reviewing a challenged confinement. A judge's writ compels the responsible officials to bring their captive before the court for it to examine the reasons for and conditions of imprisonment. The writ of habeas corpus thus ensures that no king, governor, president or other executive authority may unilaterally decide who shall be placed in confinement. Simply put, anyone made prisoner has the right of judicial review.

This fundamental bulwark of liberty originally arose under the common law. The English enshrined it in the Magna Carta of 1215. Americans followed suit in Article 1, Section 9, Clause 2 of the U.S. Constitution: "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."

Though apologists for executive power might try to hide behind that "unless …" clause, the massive violations of civil rights at present inflicted on Americans under the banner of public health crisis find no excuse in the Constitution. COVID-19 is not a rebellion, unless of the political class against the constraints of law. Nor is it an invasion except in some strained, poetical sense. One might as well call a hurricane or a foreign ideology an "invasion" as call a disease one. The principles of legal interpretation require that "invasion," in Art. I, Section 9, cl. 2, be limited to the physical entry of foreign enemy soldiers if it is to have any meaning at all.

Some might try to beg off of the requirement for judicial review by arguing that "stay in place" orders do not rise to the level of actionable confinement. Those arguments fail. The common law classifies as "imprisonment" any deliberate and complete confinement of an unwilling person within fixed boundaries. It makes no difference whether the confinement occurs in an austere public building or a luxurious private one.

The U.S. Supreme Court has read the scope of habeas corpus even more broadly, holding that it protects soldiers unlawfully retained in military service, convicts on parole, and even prisoners freed on their own recognizance. Following that lead, lower courts have held that conditional release, probation, confinement in a halfway house, and even 14 hours of mandatory attendance in an alcohol rehabilitation program qualify for habeas corpus relief. If those count as confinement, COVID-19 lockdown orders trapping whole families in their houses count, too.

Out of respect for state rights, federal law requires parties seeking relief from state confinement to exhaust their remedies under the offending state's law before bringing their claims before a federal court. But state constitutions—including those of California, New York and Illinois—typically have their own habeas corpus clauses. That makes the remedy immediately available in state courts, against state executives.

The federal statute requiring exhaustion applies only to "a person in custody pursuant to the judgment of a state court." It has no application to the COVID-19 lockdown orders, on which state courts have yet to speak. Moreover, because federal statute applies whenever a prisoner is held "in custody in violation of the Constitution or laws or treaties of the United States," it has immediate effect, as it restricts constitutionally protected freedoms of travel.  Federal courts thus can and should act immediately to defend the constitutional liberties of the tens of millions of citizens of the United States now subject to arbitrary confinement by state executive order.

Those who originally ratified the Constitution, together with its habeas corpus clause, lived in constant threat of killing pandemics. They crowded around cities and coastal sites thick with disease-carrying mosquitoes. Sewage ran down their streets and into their drinking water, invisibly poisoning it. And foreign ships kept the colonies well supplied with the latest, deadliest germs. Despite all this—or perhaps because of it—the Constitution offers no emergency medical exception for habeas corpus rights.

The many various executive orders confining Americans to their homes under threat of punishment amount to actionable confinement under the law of habeas corpus. How could it be otherwise? This mass incarceration has been imposed without any charges being filed or any trial being held. It cannot continue without judicial review.

This is not the first time public health orders have put constitutional rights at risk, and it must be admitted courts have typically shown little spine in defending habeas corpus rights against overaggressive quarantines. Most cases denying the writ date from the early 1900s, however, with few cases after the 1920s. Even then, courts showed their willingness to strike down arbitrary or oppressive restraints on liberty premised on concerns about public health. Medical science and constitutional law have changed immensely since those dark days, making habeas corpus again the best cure for the disease of overreaching executive power.

Habeas corpus is not the only legal response against the massive and unchecked infringements on liberty now occurring throughout America. The Civil Rights Act of 1873 offers a more conventional if weaker line of attack. It empowers federal courts to remedy violations of constitutional due process rights by state officials acting under color of law. Though the 1871 Act offers a well-trod path to judicial review, it has become encrusted with case law all too likely to excuse the widespread COVID-19 house arrests as a practical necessity, constitutional rights to the contrary be damned.

Perhaps the best of intentions and all credible evidence support the legality of the COVID-19 lockdown orders' extensive restraints on the freedom of entire populations. If so, nobody need fear independent judicial review. But if not? Then we will have cause to thank courts and habeas corpus from saving us from an affliction fatal to liberty: unchecked executive power.

Prof. Tom W. Bell serves on the faculty of Chapman University, Fowler School of Law. His books include "Intellectual Privilege: Copyright, Common Law, and the Common Good" (Mercatus 2014), and "Your Next Government? From the Nation State to Stateless Nations" (Cambridge University Press 2018).