If former Trump adviser Steve Bannon has it his way, the Supreme Court will decide whether the president can unilaterally suspend the writ of habeas corpus before the justices leave for their recess at the end of June.

Habeas corpus refers to an incarcerated person’s right to appear before a judge to challenge their imprisonment. According to Georgetown law professor Steve Vladeck, among legal scholars the “near-universal consensus is that only Congress can suspend habeas corpus.” The right is enshrined in the Constitution, which guarantees that 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.” 

Bannon’s campaign to suspend habeas corpus to facilitate President Donald Trump's mass deportation plans appears to have gained a foothold inside the administration. On May 9, White House deputy chief of staff Stephen Miller — a top architect of Trump’s immigration regime — told reporters that suspending habeas corpus was “an option we’re actively looking at.”

Vladeck and other legal scholars have lambasted the administration’s legal reasoning, which seems to rely heavily on Trump’s invocation of an 18th-century law known as the Alien Enemies Act. The administration argues that the law — which gives the executive branch sweeping detention and deportation powers historically reserved for wartime use — is applicable because unauthorized immigration to the United States amounts to an “invasion.” An article at Just Security calls that argument “extremely dangerous, and at odds with the text and original meaning of the Constitution.”

Bannon and Mike Davis call for habeas showdown at SCOTUS

On May 10, Bannon interviewed Article III Project founder Mike Davis about what they both characterized as a looming showdown with the judicial branch in general, and the Supreme Court specifically, regarding President Donald Trump’s authority to restrict immigration.   

“If these judges actually think that foreign terrorists who have invaded our country are entitled to years of court proceedings and due process to get them the hell out, then we need to suspend the writ of habeas corpus because this is an invasion,” Davis said on the War Room podcast. 

“If the courts are going to say that these terrorists have habeas rights, which they don't, if that's what the courts are going to say, then the president has a constitutional duty to suspend the writ of habeas corpus and repel this invasion,” he added.

“Mike, real quickly, this constitutional crisis is going to have to be solved in the Supreme Court or not,” Bannon said. “I say it’s mid-to-late June. Is that a good time frame, or do you think it'll take longer?”

“Yeah, I think that's about right, because these Supreme Court justices go on their two-month siesta after the term ends in June,” Davis replied. “And so I imagine that they're going to — I think your timing's spot on, Steve.”

On May 12, Davis was back on War Room and Bannon asked him again about that expected time frame.   

“Mike, people really responded to your, hey, you know, about habeas corpus and something's going to happen before they leave for the summer,” Bannon said.

“And you still see, your date is still before they leave on the last day of June to go for their three-month summer break,” Bannon asked, adding, “Your belief is somehow we’ll have at least an attempt at a rectification of this?”

Davis didn’t answer the question directly, but he warned the seven conservative justices that if they think “that they're just going to create constitutional due process rights for these illegal aliens,” then “the Supreme Court is going to lose its legitimacy with the American people, and when that happens, it loses everything.”

“So this is a dire warning to the Chief Justice,” Davis continued. “Proceed with caution.”

Bannon on suspending habeas: “There is going to be a constitutional crisis before the court leaves”

Bannon and his War Room podcast guests have been waging a campaign to persuade Trump to take the extraordinary step of suspending habeas rights since at least April 22, when right-wing influencer Rogan O’Handley, who goes by the moniker DC Draino, floated the idea on the show.

“I also argue we should also consider suspending the writ of habeas,” O’Handley said. “That is a constitutional power that the president can use in the event of rebellion or invasion, it has been done before, it can be done with the stroke of a pen, and we can start to take more drastic actions to deport illegals, especially the cartels, without judicial overview — without the courts getting involved.”

“DC Draino with the solutions,” Bannon said in response. “Heads are going to blow up on this.”

Bannon has returned to the subject frequently since then, on War Room and in other venues. 

“They, the opposition, are trying to force a constitutional crisis at the Supreme Court level to force President Trump's hands on deportations of the 10 million,” Bannon said on April 24, before praising O’Handley’s “magnificent” idea of suspending habeas rights.

He was even more explicit during an interview with the Financial Times that was published on May 12. 

“This is coming to a head,” Bannon said. “We started it on the show, and this is how it picks up momentum: We are going to suspend the writ of habeas corpus if the courts keep ruling against us and don’t allow these mass deportations to continue.”

“There is going to be a constitutional crisis before the court leaves,” he added.

Beyond Miller, some others in the administration seem open to the idea, including the president himself. During a cabinet meeting on April 30, Trump seemed to muse about suspending habeas rights by misleadingly claiming that power had “been used by three highly respected presidents.” (Turning Point USA founder Charlie Kirk posted the clip on social media, adding that Trump “is considering suspending writ of habeas corpus.”)

In fact, according to an article from the National Constitution Center co-authored by then-Circuit Judge Amy Coney Barrett, “President Abraham Lincoln provoked controversy by suspending the privilege of his own accord during the Civil War, but Congress largely extinguished challenges to his authority by enacting a statute permitting suspension.” 

“On every other occasion, the executive has proceeded only after first securing congressional authorization,” the article continues.

During a congressional hearing on May 14, Democrats asked Homeland Security Secretary Kristi Noem whether the Constitution would permit a president to suspend habeas rights. “I'm not a constitutional lawyer, but I believe it does," Noem responded. 

Vladeck, the Georgetown law professor, described the argument put forward by the administration — and, implicitly, by Bannon, Davis, and O’Handley — as “factually and legally nuts.”