• United States

May 26, 2025, 12:01 AM View Comments ()

Stephen Miller, U.S. President Donald Trump’s deputy chief of staff, caused a stir earlier this month when he told reporters that the administration was “actively looking at” suspending habeas corpus. The writ of habeas corpus empowers people to challenge government detention. Although Article I of the U.S. Constitution states that the right rests with Congress, Miller does not seem to care. Nor is he concerned by the language stipulating that suspension can only happen if Congress determines that a “rebellion or invasion” necessitates the draconian action. President Abraham Lincoln famously took this action in 1861 in response to specific threats that he perceived at the start of the Civil War when Congress was not in session. (Moreover, besides there being a very real crisis, as soon as legislators returned, Lincoln explained his action and Congress passed legislation backing his action.) Trump’s ongoing assertion of executive power will continue to pressure the Supreme Court to take a stand on these issues.

Trump has also been trying to intimidate the court, as he has done with other institutions, via social media. Following a decision in which a 7-2 majority rejected the administration using a 1798 law to deport migrants from Venezuela, he posted on Truth Social, “This is a bad and dangerous day for America!”

This is not the first time the court has found itself wrestling with an extraordinarily aggressive president who is determined to circumvent individuals’ constitutional protections.

After 9/11, President George W. Bush’s administration launched an aggressive set of policies to combat al Qaeda and its allies. With Republicans controlling the House and Democrats controlling the Senate, Congress passed the Authorization for Use of Military Force (AUMF) on Sept. 18, 2001. According to the legislation, “the President is authorized to use all necessary and appropriate force against those nations, organizations, and persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

While Bush did not try to suspend habeas corpus, sensing that such a move would be extraordinarily controversial and probably not survive legal scrutiny, he did capitalize on the authority granted by the AUMF. In 2002, despite opposition from the State Department, the administration established a detention center on Guantánamo Bay. Since the prison was located on a naval base that was not part of sovereign U.S. territory, the Defense Department claimed that the detainees did not have constitutional rights—including habeas corpus. The administration classified suspects as “illegal enemy combatants” with the claim that they could not receive the guaranteed protections of the Geneva Conventions or the U.S. courts. As historian Karen Greenberg recounted in The Least Worst Place, numerous factors allowed Guantánamo to become the site of human rights abuses. Worst of all, the legal vacuum opened the door to devastating behavior.

In November 2001, through what was called “unitary executive authority,” the Bush administration decided that military tribunals, rather than federal courts, would conduct the trials of detainees who were not American citizens. Military tribunals fell under the control of the commander in chief.

Though unknown to the public at the time, detainees in Guantánamo and other facilities were subject to “enhanced interrogation,” a term used to sugarcoat torture (waterboarding, exposure to severe temperatures, sleep deprivation and more), which was illegal under international law. The policy had been justified through a 2002 memorandum from the Office of Legal Counsel (OLC), which gave the president broad constitutional authority to do whatever he wanted without congressional regulation.

While organizations committed to the rule of law, such as the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights, rang alarm bells, many Americans—terrified and traumatized by 9/11—covered their ears and closed their eyes. Congress, which came under Republican control in the 2002 midterms, was not interested in imposing limitations on the popular wartime president.

The Supreme Court took up the issue in 2004. In Hamdi v. Rumsfeld, the court ruled that the government could detain enemy combatants, but also that those who were U.S. citizens retained their constitutional right to due process. Though divided on the rationale behind the decision, every justice other than Clarence Thomas agreed that the executive branch did not have open-ended power to detain citizens and noncitizens. The argument that the court could not review these matters “serves only to condense power into a single branch of government,” wrote Justice Sandra Day O’Connor.

In another significant decision on June 28 of that year, Rasul v. Bush, which involved 14 foreign nationals who had been detained in Guantánamo, the court rejected the claim that the plaintiffs being held did not have legal rights. The Bush administration’s lawyers had maintained that the court did not have the right to hear the case since they were being held outside the United States. The majority rejected the claim. In their opinion, written by Justice John Paul Stevens, the judges concluded that the United States exercised “plenary and exclusive jurisdiction” over Guantánamo, which meant that the foreign nationals did have legal rights, just as American citizens would in the same situation. The court reaffirmed the right to petition for habeas corpus in federal court, placing the first major check on executive power since the war on terrorism started. The minority, in an opinion written by Justice Antonin Scalia, vehemently disagreed with their colleagues.

The Bush administration, with the support of congressional Republicans, attempted to circumvent any constraints. On July 7, the Defense Department set up combatant status review tribunals (CSRT), three officer military panels, to determine whether individuals should and could be classified as “enemy combatants.” The thinking was that by using the military under the commander in chief, the administration would be in a more favorable position than having to count on an independent judiciary. Meanwhile, Congress passed the Detainee Treatment Act of 2005, which solidified the legitimacy of the CSRTs through legislation and curtailed the scope of habeas corpus appeals by granting jurisdiction to the circuit courts.

The court struck back in June 2006 with Hamdan v. Rumsfeld. It ruled that “enemy combatants” were guaranteed due process. Moreover, the government had to offer them a fair and neutral hearing on the designated status. “The executive is bound to comply with the rule of law that prevails in this jurisdiction,” Stevens wrote. Under the ruling, military tribunals were illegal since they violated the Geneva Conventions and the Uniform Code of Military Justice. “We have long since made clear that a state of war is not a blank check for the President,” O’Connor wrote.

Some compared the decision to United States v. Nixon in 1974, which forced the disgraced president to hand over the Oval Office recordings. According to the director of the International Commission of Jurists in Geneva, the Hamdan decision “destroys one of the key pillars of the Guantanamo system. Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole.”

Many conservative legal scholars such as John Yoo, who had worked in Bush’s OLC and authored the memo providing legal justification for enhanced interrogation, criticized the court for lacking judicial restraint and failing to “appreciate the inherent uncertainties and dire circumstances of war.” There were exceptions, however. Jack Goldsmith, a conservative with impeccable credentials who headed the OLC from 2003 to 2004, published a blistering critique of Bush’s policies in The Terror Presidency, lamenting that the policies “rested on severely damaged legal foundations” and that they were “sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the president.”

Congress moved again in October to circumvent the decision with the Military Commissions Act, which authorized trials by military commissions. The legislation, as Charlie Savage recounted in Takeover, meant that decisions to label a person as an enemy combatant “were final, and they now faced the prospect of life imprisonment at the discretion of the executive alone.”

The court persisted. In 2008, Justice Anthony Kennedy wrote the 5-4 majority opinion for Boumediene v. Bush, which stated that the Military Commissions Act was unconstitutional because it suspended the right of habeas corpus, which the court had affirmed for detainees four years earlier. The right of habeas corpus was essential given that “the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more.”

The scope of all these cases was indeed limited. Robust executive power under the name of national security endured. As the historian Mary Dudziak wrote in The Presidency of George W. Bush, the court had only limited the president’s power “at the margins.” The larger national security apparatus put into place by the Bush administration generally remained intact and would survive the two terms of his successor, President Barack Obama, as well. Moreover, in some cases, they sent contradictory signals.

Nonetheless, starting in 2004, the court made significant incremental contributions that were important to protect the legal law of the land, with majorities repeatedly rendering decisions that affirmed limitations to what the president could do in the name of national security. Without the pushback, no guardrails would have slowed Bush down. Part of the court’s legacy during these years was the vital message that even when the United States faced imminent threats, the rule of law had to be respected if democracy was to have any meaning whatsoever.

In 2025, the Supreme Court faces another test of historic proportions. This time, there is no national security crisis like 9/11. The “invasion” of undocumented immigrants is a narrative that has been promoted for political purposes rather than an accurate description of genuine problems with borders being overwhelmed. Trump has embarked on a campaign to use his executive power without restraint. The time might arrive when he explicitly and accurately acknowledges what the court has said but refuses to abide. That would fit the description of a full-blown constitutional crisis.

As the war on terrorism revealed, the United States cannot afford for the court to relinquish its responsibilities. Other institutions have learned that the best way to counter Trump’s assertion of presidential power is to defend norms and rules rather than concede to threats.

The weight of major court decisions still matters. Unlike any government body besides Congress, the justices can send a message with a massive reach and legal standing, which can counteract Trump’s attention-grabbing antics. And if the president is willing to ignore court decisions, then he should be forced to do so in the public eye, making it clear that he and his party are willing to violate the law and the U.S. Constitution. Trump will only be able to avoid moments of reckoning if the court shies away from these tough decisions.

While the court has shifted to a relatively solid 6-3 conservative majority, Justices John Roberts, Amy Coney Barrett, and Brett Kavanaugh have shown some constitutional juice on questions involving the balance of power. Although the court might not have an army, it remains the most powerful voice of the Constitution, and that document can be an awesome force in its own right.

The justices stand at the crossroads of history. Defending the rule of law, which the country’s founders created, is the only way to ensure they will be on the right side of history when the textbooks are written.