Yo Crafty, think this one is right up your alley:
In another record-shattering development, the New York Times ran a non-story, a story that was no story at all, topped with an intentionally neutral headline, and just reprinting a Supreme Court dissent in full. The headline only said, “Read Justice Samuel Alito’s Dissent in the Alien Enemies Act Case.” The ‘story,’ if you can call it that, was a single sentence. All the Times could manage to eke out was, “Justice Samuel A. Alito Jr. wrote that the Supreme Court’s decision to block the Trump administration from deporting Venezuelan migrants under a wartime law was premature.”
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Hardly. He said a lot more than that. At midnight on Saturday night, Justice Samuel Alito, joined by Justice Thomas, filed a scorcher of a dissent. It responded to a previous midnight decision in AARP vs. Trump, in which the seven other justices had joined on an emergency basis. Justice Alito’s dissent was white-hot. Here’s how it concluded:
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You can argue that the Supremes were just following a previously established pattern: they generally don’t rule on appeals from TRO’s, but instead have been waiting for the lower court to first enter a reasoned decision on a preliminary injunction. So far, those cases have all wound up going Trump’s way, albeit after a short period of discomfort. The bigger problem is that lower courts seem to be taking advantage of this prudish restraint and are pushing the outer limits of what’s appropriate or legal to include in a temporary restraining order.
In any case, the Supreme Court’s Friday night order included this remarkable line: “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.” Giving the Court the benefit of the doubt, it appeared to be attempting to avoid another Judge Boasberg-style mess where Tom Homan just puts the detained plaintiffs on the next plane to El Salvador. Sorry, judge, they’re already gone.
But other commenters saw it as the Supreme Court indefinitely shutting down a whole class of deportations, in a case where they probably lacked jurisdiction, and where the so-called ‘class’ never should have existed to start with. I think everything is going to work out fine, and I don’t want to waste time with the details of yet more leftwing lawfare that is going nowhere.
But this snap, midnight Supreme Court decision put what could be the final polish on a galaxy-sized issue that nobody has dared to consider so far.
⚖️ The U.S. Constitution mentions an archaic, oddly-named privilege called the writ of habeas corpus in its Article I, Section 9, Clause 2. Let’s read Clause 2 together:
“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.”
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The ‘privilege’ of the writ of habeas corpus traces its storied lineage back to the Magna Carta. It gives due process rights to anyone detained by the government and gives anyone jailed an in-person court hearing. It also bars indefinite detention. In short, the government can’t just disappear people, so some historians call it the “Great Writ of Liberty.”
Famously or infamously, depending on your point of view, President Lincoln partially suspended the writ in certain key military corridors during the Civil War. It led to a showdown with the Supreme Court in a famous case called Ex parte Merryman. Merryman, who lived in Maryland, was arrested by the U.S. military in May, 1861, for treasonously burning railroad bridges to block Union troops and for recruiting Confederate forces.
Chief Justice Taney found Lincoln’s suspension of the writ to be illegal, holding (quite reasonably) that since Clause 2 appears in Article I, it’s a power held by Congress, not by the Executive Branch.
But the decision did not settle anything; just the opposite. Lincoln (also famously or infamously) ignored the Court’s order. Chief Justice Taney had ordered the military to immediately release John Merryman and coughed up a blistering written opinion, but Lincoln never flinched. He kept Mr. Merryman in chokey and asked Congress to approve the writ’s suspension retroactively— which they did, two years later in 1863, in the Habeus Corpus Suspension Act.
Lincoln enjoyed full public support —the “will of the people”— but modern critics find the Merryman kerfluffle to be Lincoln’s original dictatorial sin. Still, they usually fail to grapple with the fact that Congress subsequently endorsed it — two branches against one.
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Merryman never settled the dispute. First, Justice Taney acted alone, in his capacity as a circuit judge, and not for the entire Court. So his decision has no precedential power. Second, Congress blessed Lincoln’s suspension in its 1863 Act. Third, in the years following Merryman, the Supreme Court has carefully danced around the authority issue and has never formally held that a sitting president cannot suspend the writ without Congress.
⚖️ To me, it looks a whole lot like President Trump has been preparing a path to argue for suspending habeas corpus.
First, and most importantly, right out of the gate President Trump issued an executive order declaring mass illegal immigration was an ‘invasion.’ Invasion is one of only two constitutional grounds for suspending the writ. Second, Trump has invoked the Alien Enemies Act of 1798 —the Act at the heart of these key cases— which invokes precedent for wartime-style legal authority over foreign nationals, bypassing peacetime due process protections.
In J.G.G. v. Trump, the Boasberg case, the administration proceeded with deportations despite a temporary restraining order, foreshadowing Lincoln-style defiance. It wasn’t actual defiance, not really, since the Administration argues it did comply with Boasberg’s TRO. But it was nevertheless just short of defiance, since Judge Boasberg clearly disagrees.
Last week, the DC Circuit stayed Boasberg’s contempt order, defusing an imminent constitutional crisis at the last minute.
Third, and maybe most importantly, everything we can see is barreling toward galvanized public support for suspending the writ. Trump and his allies have consistently described the crisis as unlawful judges defying the will of the people —just as in Lincoln’s day— and interfering with the President’s electoral mandate to remove foreign terrorists and cartel gangs from American shores.
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In about twenty different ways, Trump has recently said things like, “I’m trying to protect the country—but judges are protecting criminals.”
Indeed, it is difficult to see how Trump can possibly remove up to 20 million illegal immigrants —fulfilling his campaign promise— if each illegal gets a court hearing. Removal at scale is impossible unless one of two things happens: either a massive, rapid expansion of the legal system, which is unlikely to say the least, or removal of the judicial bottleneck.
Our existing immigration system wasn’t built for mass enforcement— it’s built for case-by-case adjudication.
⚖️ Here’s where things get spicy. Trump, citing judges making it impossible for him to fulfill his mass deportation promises, could next ask Congress to authorize suspension of the writ in a continuing resolution, which circumvents the Senate filibuster. (Continuing resolutions are short-term funding bills that let the federal government stay open.)
If the Continuing Resolution also agreed that America is currently under invasion, then two branches would be lined up against one, and the Supreme Court would find it very difficult to undo. Even Justice Taney found that Congress can legally suspend the writ, so Congressional delegation of that authority to the President in a CR would be constitutionally sound.
And the Supreme Court has always deferred to the other branches over things like declarations of emergency, war, or invasions, calling those political questions rather than legal issues.
Once again we see the outlines of a carefully considered plan. One of Trump’s first moves was to declare an invasion, and to declare cartels to be foreign terrorist organizations, which put the Alien Enemies Act on the chessboard, framed the problem in military terms, and teed up an eventual showdown over the writ. Trump’s team must have known they’d face these due process problems in carrying out the mass deportation plan.
Critically, the Courts could avoid this appalling scenario by crafting smart, balanced legal opinions that help the Administration accomplish its objectives without hamstringing it with micromanaged due process concerns. For instance, they could hold that non-citizens caught near the border during a declared invasion have strictly limited procedural rights, especially if prosecuted under the Alien Enemies Act or other federal immigration statutes.
Or, courts could invoke the political question doctrine, and hold that the determination of “invasion” is the province of Congress and the Executive, not the courts. Instead of requiring full due process for illegal terrorists, they could order reporting requirements, time limits, and narrow targeting. Or they could define the limits of emergency Executive powers and require Congress to ratify Trump’s emergency policies within a certain period of time.
But instead, the Courts are walking right into the trap. In their institutional vanity, procedural rigidity, and Trump derangement, the courts are doing exactly what executive strategists want them to do: lean hard into due process formalism, telegraph hostility, and issue sweeping rulings that look like they’re siding with gang-affiliated aliens over national security.
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It practically invites defiance. It lets Trump rightfully say, Look, I didn’t want to ignore the courts—but I have no choice. They’ve made the country ungovernable.
Trump is forcing the courts into a clear choice: cooperate or become irrelevant.
⚖️ And so we return to Justice Alito’s scathing dissent, which reads like a manifesto for suspension of the writ. The logic and tone of Alito’s dissent make it clear that he sees judicial overreach as the true constitutional crisis, rather than executive enforcement.
When Alito wrote, “Both the Executive and the Judiciary have an obligation to follow the law,” he was saying that when the Executive uses legal tools like the Alien Enemies Act and constitutional powers during a crisis, the Court’s role is to tread lightly.
By pointing out the absurdity of class-wide habeas, and the procedural circus of midnight TROs based on speculative harms, Alito implictly argued that the writ is being abused by the courts— which sets the stage for suspending it entirely.
Alito’s dissent rang with echoes of the Civil War-era logic of necessity that Lincoln invoked in Ex parte Merryman. Alito signaled that, if the President acts lawfully under an invasion theory, the courts should not interfere with procedural technicalities. His dissent’s strong language undermined the legitimacy of judicial interference with mass enforcement, fueled public sympathy against detainees by focusing on legal overreach and lack of any rationale explanation, and created a quotable moral and legal groundwork to argue that: the judiciary left us no choice. The writ is now suspended.
Neither the Obama nor Bush administrations faced the kind of judicial micromanagement over deportations that Trump has encountered, and no court issued a nationwide TRO halting those presidents’ deportation programs, much less midnight orders eviscerating mass enforcement.
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⚖️ At bottom, this lawyer sees a timid, reactive Supreme Court desperately trying to walk an increasingly thin line between endorsing the Administration’s aggressive immigration enforcement and maintaining judicial credibility. But that timidity is walking the country into uncharted constitutional waters.
In 2018, Chief Justice Roberts wrote an opinion in Trump v. Hawaii, upholding Trump’s “muslim travel ban.” But in it, he sharply criticized the court’s decision in Korematsu, which upheld FDR’s internment of Japanese Americans during World War II. That decision was never overturned, but Roberts called it a stain on the Constitution. FDR didn’t need to suspend the writ because the courts let him conduct de facto mass detention.
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This time, unlike in FDR’s day, the courts aren’t letting Trump conduct mass deportations. Justice Roberts seems obsessed with not getting on history’s wrong side by endorsing another Korematsu. But in undermining the Executive’s core constitutional function to defend the borders, he is also undermining the Court’s own legitimacy, by issuing hasty, unsustainable rulings with no constitutional compass or even a plan.
In 1942, executive overreach was the problem. In 2025, it may be judicial overreach. This time, the courts aren’t letting the executive function, and that may prove far more dangerous than the Court’s passive deference of 1944.
The battle is far from over. Whatever happens, it’s going to make more history. And it definitely won’t be boring.
https://www.coffeeandcovid.com/p/habeas-corpses-monday-april-21-2025
