The Constitution provides the power to suspend a key protection afforded to those seized by the government. Stymied by multiple nationwide injunctions initiated by district court judges, President Trump may now institute that power on the eve of an oddball Supreme Court case set for argument on Thursday, May 15th. The administration has sort of given the High Court an ultimatum: rein in the lower courts, or habeas protections will go away.
Habeas corpus refers to the power of courts to demand that the executive produce a detainee or prisoner before the Court to challenge the deprivation of liberty. Thomas Jefferson wrote: “The Habeas corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.” Absent this power, courts and petitioners would be toothless before the executive power to deprive anyone of their liberty, no matter the law or the Constitution. Yet, the Constitution itself says habeas may be suspended – in certain circumstances:
“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.”
The power to suspend habeas is laid out in Article 1, suggesting it is vested in the Congress. The Supreme Court ruled in 1861 that the authority to suspend habeas corpus was under the exclusive purview of the Congress. President Lincoln argued, however, that since Congress was in recess, he could institute a habeas suspension. He would later enact another suspension, this time without authorization from the legislature.
The current controversy concerns President Trump’s day-one executive order on birthright citizenship – denying US citizenship to those whose parents were in the country illegally when they were born. Three district court judges implemented nationwide bans on administration efforts to execute Trump’s order. At his latest cabinet meeting, a reporter asked him if he had “spoken to his team about ways to mitigate this.” Trump seemed to make a point of not using the words habeas corpus or discussing eliminating access to the right at the time. Instead, he said: “There is one way that has been used very successfully by three presidents – all highly respected – but we hope that we don’t have to go that route.”
That coy discussion has gone by the wayside. White House Deputy Chief of Staff Stephen Miller told a press gaggle Friday that suspending habeas corpus is “an option we’re actively looking at” and “a lot of it depends on whether the courts do the right thing or not.” Nationwide injunctions issued by district courts have become a problem at the forefront of the federal judiciary since Trump’s first term. They were exceedingly rare before 2016. According to a study published in the Harvard Law Review, however, over 50% of all such injunctions issued since 1963 have been against the Trump administration. The president asked the Supreme Court for an emergency review of three injunctions, and it said yes. His petition reads:
“The government comes to this Court with a ‘modest’ request: while the parties litigate weighty merits questions, the Court should ‘restrict the scope’ of multiple preliminary injunctions that ‘purpor[t] to cover every person in the country,’ limiting those injunctions to parties actually within the courts’ power.”
The Supreme Court will hear consolidated arguments in Trump v. Casa, Trump v. Washington, and Trump v. New Jersey at 10 a.m. on Thursday, May 15th. They have allotted one hour for the arguments, thusly – 30 minutes for Solicitor General D. John Sauer, arguing for the Trump administration, and 15 minutes each for N.J. Attorney General Jeremy M. Feigenbaum and Kelsi B. Corkran, both arguing to keep the injunctions in place. All three advocates served as Supreme Court clerks. Sauer for Justice Antonin Scalia, Feigenbaum for Justice Elena Kagan, and Ms. Corkran, the Supreme Court Director at a Georgetown law institute, clerked for Justice Ruth Bader Ginsburg.
A decision is expected by July.
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Editor’s Note: This piece has been corrected to reflect that the Constitution does not give the power to suspend habeas to the president. Rather, it states it in Article 1, which puts it under the authority of Congress. We regret the error.
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