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Many news outlets over the weekend reported that, as The Guardian put it, “The Trump administration is considering suspending the writ of habeas corpus, the legal right to challenge one’s detention.” The New York Times echoed: “Stephen Miller, the White House deputy chief of staff who orchestrated President Trump’s crackdown on immigration, said on Friday that the administration was considering suspending immigrants’ right to challenge their detention in court before being deported.”
The administration might well be “considering” suspending the writ unilaterally—it doesn’t take much, after all, to “consider” an option. But as I will explain in what follows, Miller technically did not say that. He responded to what appeared to be a planted question with a studied but ambiguous answer that was likely an effort to troll the press and the American people for various aims, not all of which are clear, but which include raising the temperature on judges considering detention claims around the country, and frightening, disorienting, and distracting the public.
The Passive-Voice Suspension Clause
The “Great Writ” of habeas corpus ad subjiciendum requires a custodian to produce a detainee before a court so that the court can assess the legality of detention. The Supreme Court in its emergency order in Trump v. J.G.G. ruled that habeas corpus was the proper remedy for challenging the legality of removal under the Alien Enemies Act (AEA).
A suspension of the writ directed at the AEA detainees would, if valid, deprive them of a judicial remedy to challenge removal. Depending on how the suspension was drafted, it might (again, if valid) be used to prevent courts from reviewing a broader array of deportations. It is thus important to determine who can suspend the writ, and under what circumstances.
The Suspension Clause in Article I, Section 9 of the Constitution provides: “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 clause makes plain the circumstances that justify suspension. But the first part of the clause is written in the passive voice and does not expressly state which branch of government has the authority to suspend.
The best view is that Congress, and only Congress, can suspend the writ (or authorize its suspension). This conclusion is based on the clause’s placement in Article I, which “is devoted to the legislative department of the United States, and has not the slightest reference to the executive department”; on the relevant English practice (which was that only Parliament could suspend); and on the framers’ concerns about habeas as a protection against executive detention without trial, which would be useless if the executive alone could suspend.
Chief Justice Marshall for the Court in Ex Parte Bollman stated in dicta that “[i]f at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so” (emphasis added). More recently, every Justice in Hamdi assumed that Congress held the suspension power, and Boumediene’s emphasis on the Suspension Clause as a separation of powers check on the president would be nearly meaningless if the president could unilaterally suspend the writ.
President Abraham Lincoln did, of course, suspend on his own authority the writ during the Civil War. He is the only president ever to do so without congressional authorization. Lincoln argued before Congress on July 4, 1861 that his action was lawful because of the Suspension Clause’s silence on which branch can suspend, and because it would make little sense to place the exclusive power to suspend in the hands of a Congress that—especially given transportation technology circa 1789 and 1861—might not be able to meet in a crisis that demanded suspension.
Lincoln’s argument was limited to the very extreme circumstances posed by the Civil War, as were the related arguments made by his attorney general. Even the highly contested Lincoln precedent would thus not support a unilateral presidential suspension by Trump to deport unlawful aliens.
There is also a question whether even Congress could lawfully suspend the writ to redress the problem of removing many millions of unlawful immigrants inside the United States. The substantive legal issue is whether that problem constitutes an “Invasion” where “public Safety may require” suspension. I doubt that either substantive prong of the Suspension Clause is satisfied here.
But the call on that interpretive question is likely for Congress and not the courts. Justice Marshall in Bollman, discussing habeas, stated that “[i]f at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.”
Chief Justice Taney, relying on Bollman and Justice Story’s Constitutional Commentaries, similarly maintained that “congress is, of necessity, the judge of whether the public safety does or does not require [suspension]; and their judgment is conclusive.” Justices Scalia and Thomas more recently expressed a similar view in Hamdi. Amanda Tyler notes “the conventional view that suspension presents a nonjusticiable political question” even as she challenges it.
What Miller Said: the Anatomy of a Troll
What follows is a long narrative of the machinations behind the Miller statement. The bottom line is that the administration has appeared to work with the press to represent that it is considering an effort to suspend the writ of habeas corpus, but has been strictly noncommittal about whether the president would suspend the writ unilaterally, or would instead ask Congress to authorize suspension of the writ—a controversial step, to be sure, but much less controversial than unilateral presidential suspension.
The machinations began in a White House press briefing on April 28. White House Press Secretary Karoline Leavitt gave the first question to MAGA influencer Rogan O’Handley. He stated that “[m]any are now calling for Trump to circumvent these radical judges [thwarting his deportation agenda] and consider suspending the writ of habeas corpus solely for these illegal aliens in accordance with the terms of Article I Section 9 of the United States Constitution.” He cited the “strong precedent for this action … by three of our greatest presidents, Abraham Lincoln, Ulysses S. Grant, and Democrats’ favorite president of all time, FDR.”
Neither Grant nor FDR suspended the writ on their own authority. These presidents acted on the basis of congressional authorization to suspend the writ—Grant to deal with Reconstruction, and FDR to approve the Governor of Hawaii’s suspension in December 1941. Lincoln too acted pursuant to a congressional authorization to suspend when Congress, following his unilateral suspensions, finally acted in 1863. The common element in these precedents is congressional authorization to suspend.
After citing the precedents, O’Handley asked “if and when the Trump administration is planning to suspend the writ of habeas corpus to circumvent these radical judges who are infringing on his Article II powers and to start shipping out illegals en masse?” Leavitt responded: “I have not heard such discussions take place, but I can assure you that the president and the entire administration are certainly open to all legal and constitutional remedies to ensure we can continue with the promise of deporting illegal criminals from our nation's borders.”
Two days later, on April 30, at the end of a cabinet meeting, President Trump took several questions without pointing to any reporters and then, for the last question, pointed to an unidentified reporter in the corner of the room. The reporter mentioned “abuses of nationwide injunctions … when it comes to deporting these illegal, violent aliens that came in under the previous administration,” and asked: “Have you spoken to your team about ways to mitigate this and continue to deliver for the American people?”
President Trump responded:
Well, there are ways to mitigate it. And there's some very strong ways. There’s one way that's been used by three very highly respected presidents. But we hope we don't have to go that route. But there is one way that has been used very successfully by three presidents, all highly respected. And hopefully we don't have to go that way. But there are ways of mitigating that.
[video source: White House]
Trump did not here mention habeas corpus, much less suspension, but his reference “to three very highly respected presidents” almost certainly alludes to the presidents mentioned by O’Handley. Trump was obviously prepared on this point, and it is plausible to think the question was planted. The “one way that’s been used” by all three of these presidents—the only use of habeas they have in common—is a congressionally authorized suspension of the writ, not unilateral presidential suspension.
Ten days later, last Friday, Stephen Miller approached reporters outside the White House, stated that he only had time for a few questions, then pointed to the rear of the gathered reporters and said, “Hold on, I see there’s a question back there first.” The person chosen was Jordan Conradson, the controversial reporter for MAGA-friendly Gateway Pundit, who stated: “President Trump has talked about potentially suspending habeas corpus to take care of the illegal immigration problem. When could we see that happen, do you think?”
Miller responded: “Well, the Constitution is clear. And that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So that's an option we're actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”
[video source: PBS News]
Two things of note in this exchange. First, I have found no instance where President Trump discussed “potentially suspending habeas corpus to take care of the illegal immigration problem,” at least if that phrase means unilateral presidential suspension à la early Lincoln. Trump did not say that in the cabinet discussion 10 days earlier. Instead, he said he could follow the “one way that's been used by three very highly respected presidents”—which is reliance on congressional authorization.
Second, Miller is not shy about making outrageous or controversial legal claims, especially about the president’s unilateral powers. Yet despite the leading question, he did not state that President Trump is considering suspending the writ on his own authority. His ambiguous statement in the passive voice mirrors the ambiguity in the passive voice construction of the Suspension Clause. It is entirely consistent with the president and the administration considering asking Congress to suspend the writ, and with Trump’s reference to the “one way” in reliance on precedents from the three “very highly respected presidents.”
I am not claiming that the administration is considering asking Congress to authorize suspension—there is no way to tell from public information what if anything the administration is planning. (More on this in a moment.) Nor am I denying that the administration is considering unilateral suspension—it doesn’t take more than a flicker in Miller’s brain or a brief conversation with the president for the administration to be deemed to “consider” an option.
Nor am I claiming that there is no ambiguity in what Miller said. Clearly there is, since he was widely interpreted to say something he technically did not say. Based on Miller’s statement, the world thinks the administration has stated that it is considering suspending the writ unilaterally, and Democrats and the commentariat have reacted with “growing alarm” accordingly.
The Aims of Trolling
A congressional suspension of the writ to deal with the unlawful immigrant problem would be very controversial, and a unilateral presidential suspension a hundred times more so. The administration’s float of either possibility is necessarily big news.
The puzzle here is why the administration would proceed with pretty clearly planned steps to make the habeas issue salient, then take care to use words that do not commit to unilateral presidential suspension, yet with the foreseeable result that their words might be reported the way they were reported, and with the foreseeable outrage.
One possibility is that I am wrong, and the administration in fact unambiguously intended to convey that it is contemplating suspending the writ unilaterally, but stumbled in expressing that intent.
Another possibility—and pretty clearly part of the explanation—is that the administration is signaling to its base that it is taking every possible step to follow through on its campaign pledge to rid the country of unlawful aliens. The administration is genuinely frustrated by judges slowing its ability to deliver on this pledge. It is looking at every avenue to speed things up.
A valid suspension of the writ—by the president alone or Congress—would as a practical matter enable it to do so. The Constitution mentions “suspen[sion]” as a possibility in “Cases of … Invasion,” which is what the administration says it faces. And so it says it is considering taking that route, which it sees as good politics, as is the responsive outrage, which makes the administration’s claim more credible to the base.
A related aim is to keep the pressure on judges. Two of the three press questions examined above, and the answers by Leavitt and Miller, criticized an out-of-control judiciary thwarting the president’s deportation program. The administration clearly thinks attacks on judges in this context are good politics, and it seems to think that the attacks will in the aggregate pressure the judges into favorable rulings (though as Bob and I have noted since January this is a contestable assumption). There may also be an element of trial balloon in the press exchanges in recent weeks.
What remains hard to understand is why the administration would be so careful to hedge on whether it is considering the most controversial step of presidential suspension. Why preserve deniability about ultimate aims? Why not clearly state that Trump himself is thinking about suspending the writ, for full political benefit along the lines sketched above?
Perhaps the administration will go in that direction next. But if not, the situation would be analogous to the White House troll on defying judicial orders. Recall Vice-President J.D. Vance’s statement that “[j]udges aren’t allowed to control the executive's legitimate power.” This literally harmless truism uttered in the context of the administration’s open disrespect toward courts was widely reported as a threat to defy judicial orders.
The administration has not, to the best of my knowledge, expressly threatened to defy judicial orders even as it has clearly toyed with doing so in words and deeds. It thus appears to care at least a tad about the political impact of certain open threats, perhaps on Republicans in Congress, perhaps on the Supreme Court. Something similar might be going on with habeas.
A larger point is that the administration enjoys and benefits from keeping the demos on edge through soft or ambiguous threats of authoritarian action. The ceaseless firehose of novel fear-inducing rule-of-law threats, even if never realized, is disorienting and distracting and numbing. The press and the public have limited bandwidth to report and absorb the threats. The focus now on habeas distracts attention from the more materially controversial things the administration is doing. It exhausts anyone paying attention. Over time it may widen the Overton window for less extreme but still bad actions. All of this was accomplished by a mere 68 words from the president and 57 words from Miller.
And then, finally, there is the simple joy of the troll—the rapture of owning the libs, and others. One imagines Miller saying “let’s go have some fun” just before descending smilingly on the gathered reporters on May 9 to drop the orchestrated habeas bombshell.