A guest on former Trump adviser Steve Bannon’s War Room podcast argued that if the Supreme Court doesn’t limit the federal judiciary’s power to issue nationwide injunctions, then President Donald Trump must suspend the writ of habeas corpus to accelerate his mass deportation plans. Bannon later fully agreed with the assessment.

Rogan O’Handley — a conservative commentator who goes by the moniker DC Draino —  made the comments on the May 27 edition of War Room, escalating a campaign that he, Bannon, and others in right-wing media have been waging since at least April 22. 

Habeas corpus refers to the constitutional right of an incarcerated person to challenge their confinement before a judge. Legal experts have said it is “absurd” to think that the Trump administration can suspend habeas without an act of Congress. Bannon and O’Handley’s conversation comes as the Trump administration has sought to use a 1798 wartime law to circumvent habeas claims, while also railing against federal judges who have issued various injunctions limiting the practice. 

Previously, Bannon and War Room guest Mike Davis, founder of the Article III Project, had called for the Trump administration to force the Supreme Court to rule on whether the executive branch could unilaterally suspend habeas corpus rights before its summer recess. O’Handley’s push to tie habeas to the issue of nationwide injunctions offers a more concrete and explicit timeline. 

“Right now, the Supreme Court is debating internally about the extent and the power of these federal district court judges to issue these national injunctions,” O’Handley said. “If they make a ruling that they are able to continue completely stalling the presidency, executive II powers to deport illegal aliens, then President Trump will have no choice but to suspend the writ of habeas corpus and save this country.”

“If the Supreme Court does not limit these injunctions to just the parties before the district courts, then that solidifies that we are in a constitutional crisis and Trump will have to take drastic measures to repel this historic invasion,” O’Handley added.

“I 100% agree with you,” Bannon responded.

There are at least two distinct legal issues underlying Bannon and O’Handley’s commentary. One is whether unauthorized immigration constitutes an “invasion,” as the Trump administration has argued, and therefore authorizes use of the Alien Enemies Act, an 18th century law that gives the president sweeping powers to detain and deport people during wartime. Legal blog Just Security characterized the administration’s position as “extremely dangerous, and at odds with the text and original meaning of the Constitution.” 

On May 16, the Supreme Court prevented the Trump administration from using the Alien Enemies Act to quickly deport Venezuelans without “constitutionally adequate notice.” Prior to the Supreme Court’s decision, at least three federal judges had ruled against the Trump administration’s use of the Alien Enemies Act, although a judge in Pennsylvania OK’d its use.  

The other issue is the power of federal district courts to issue rulings that apply to the entire country, known as nationwide injunctions. The topic came before the Supreme Court on May 15, during a hearing on the constitutionality of Trump’s executive order purporting to ban birthright citizenship in a case that also had direct implications for nationwide injunctions. The Washington Post reported that the Supreme Court appeared “divided” on how to rule on that issue.

White House deputy chief of staff Stephen Miller, Homeland Security Secretary Kristi Noem, and Trump himself all appear to be willing to take the extraordinary step of suspending habeas corpus.

According to Georgetown law professor Steve Vladeck, the “near-universal consensus is that only Congress can suspend habeas corpus—and that unilateral suspensions by the President are per se unconstitutional.”