Did a Super-Conservative Trump Lawyer Overstate the Rights of Undocumented Immigrants?

Yesterday's New York Times revealed that in April 2025, White House Secretary Will Scharf--described in the article as such a conservative lawyer that he "had bemoaned John McCain as too moderate for the 2008 Republican nomination, and believed Mr. Trump had been vindictively prosecuted after his 2020 election loss"--wrote a memo explaining in detail why the apparent plan to suspend habeas corpus for undocumented immigrants was unlawful. The big news here is not what was in Mr. Scharf's memo but the fact that he felt the need to write it.

The memo is a generally correct, even anodyne, recitation of the constitutional law of habeas corpus. The key case is Ex Parte Merryman, which held that Congress, rather than the president, has the power to suspend the privilege of the writ. Admittedly, Merryman was a decision by Chief Justice Taney in his capacity as a Circuit judge, not a ruling of the full Supreme Court, but its reasoning is sound. Although the Suspension Clause does not refer to any specific institution or actor, it appears in Article I, Section 9, which imposes limits on the powers of Congress. If the president had any power to suspend habeas corpus, one would expect the power and limits on it to be found in Article II. Moreover, given the severe implications of a suspension, it should occur only upon deliberation by the most democratic branch. In any event, Merryman has long been accepted.

Thus, the bottom line of the memo is clearly correct. President Trump lacks the power to suspend habeas acting unilaterally. That said, Scharf's memo seems to overstate the limits the Suspension Clause places on what Congress can do.

The memo states: "Even where Congress has explicitly suspended habeas corpus rights, the Supreme Court has held that some alternative process must be provided to defendants, with procedural safeguards akin to a habeas corpus action." The memo does not say what case so held, and, so far as I'm aware, none ever did. In Boumediene v. Bush, the Court concluded that the procedures authorized by the Military Commissions Act (MCA) of 2006 were not an adequate substitute for habeas, but that was because the MCA was not a suspension. With the detainees' habeas rights intact, the question was whether the MCA respected those rights. If it did, then it was valid, regardless of whether the substitute procedure was called "habeas corpus." But if it did not, and according to the majority it did not, then the MCA was unconstitutional because Congress had not suspended the writ.

So what was Scharf thinking? Consider three possibilities. First, he may have simply been mistaken. The memo is short and was likely dashed off quickly while Scharf was understandably alarmed at what Stephen Miller (who is not a lawyer) was cooking up. Eager to get the attention of White House Chief of Staff Susie Wiles before the habeas suspension plan was set in motion, perhaps Scharf simply goofed, misremembering Boumediene or writing something he didn't truly mean to write.

Second, perhaps Scharf was confusing habeas with due process, which would be understandable, given the somewhat confusing relation between the two. Habeas corpus is a procedural vehicle for bringing to court legal objections to detention, but often the underlying legal objections involve an alleged denial of due process in violation of the Fifth Amendment. Because due process (in this respect) is also a procedural right, it is easy to confuse them. Moreover, the Court has said (in Boumediene and elsewhere) that the scope of the habeas right may differ based on the degree to which the detainee has had sufficient process in pre-habeas proceedings.

Third, there is also some scholarly support for the view that, as a historical matter, suspension did not extinguish the right to due process. In a 2007 article in the Columbia Law Review, Trevor Morrison argued on historical and other grounds that due process and habeas are distinct rights, so that a suspension does not render an unlawful detention lawful. Scholarship by Gerald Neuman and Amanda Tyler (each writing separately) might also be cited for the proposition that even a valid suspension leaves various procedural rights intact. None of that amounts to a Supreme Court holding, however, so while Scharf might have fairly attributed the view he espoused to highly respected scholars, he went too far in attributing it to SCOTUS.

In addition, the memo arguably overstates the limits on suspension in another way. It concludes its discussion of Ex Parte Milligan this way: "Essentially, if the civilian courts are open in a given jurisdiction, the government cannot circumvent them by suspending habeas rights for the sake of convenience or expedition." If by "the government" Scharf meant "the executive branch of the federal government," that's right. But in Milligan, the executive didn't purport to suspend habeas rights; it subjected Milligan to a military trial. The holding of the case was that a civilian gets a trial in a civilian court, regardless of whether there has been a suspension. (Congress had authorized President Lincoln to suspend the writ, which he did, but the Milligan Court held that the suspension did not apply to Indiana, where the civilian courts were functioning.)

But isn't Scharf correct that the government, including Congress, cannot suspend habeas "for the sake of convenience or expedition?" In an important sense, yes. By the express language of the Suspension Clause, Congress can suspend the writ only "when in cases of rebellion or invasion the public safety may require it." However, it is not clear who gets to decide whether those conditions are met.

Dissenting in Hamdi v. Rumsfeld on the ground that the majority was insufficiently protective of a citizen detainee's rights, Justice Scalia, joined by Justice Stevens, asserted that if Congress were to suspend the writ, its decision would be unreviewable by the courts. "When the writ is suspended," he wrote, "the Government is entirely free from judicial oversight."

Is that right? In a 2006 article in the Stanford Law Review, Amanda Tyler described the Scalia/Stevens view as reflecting the "conventional wisdom" that whether the circumstances justifying suspension exist presents a nonjusticiable political question. However, she also noted that the Supreme Court has never actually decided the matter, the Founding-Era sources are mostly silent, and there are powerful reasons to think that the conventional wisdom is wrong.

I agree with Professor Tyler, but I have little confidence that the current Supreme Court would. Scharf's memo is admirable in saying that the government cannot circumvent the Suspension Clause for convenience or expediency. But it is incomplete in failing to note that Congress (though not the president acting alone) could probably get away with suspending the writ based on bogus recitations of, say, an "invasion" of undocumented immigrants because courts heeding the conventional wisdom would not intervene.

Yet that failure on Scharf's part is not only excusable; it is laudable. The second Trump administration is like the "bad man" imagined by Oliver Wendell Holmes, Jr. It does not ask what the law requires or forbids, much less what is right or wrong. It asks only what it can get away with. Kudos to Mr. Scharf for refusing to answer that question and actually telling his bosses how the Constitution constrains an administration that means actually to abide by it in good faith.

-- Michael C. Dorf