Hear ye! Hear ye! King Donald approaches his throne
Donald Trump seeks nothing less than the abolition of habeas corpus
Note: See update for May 9, 2025, at end of post.
Chris Geidner pulls the pieces together for what should be an unsurprising conclusion: “[Kilmar] Abrego Garcia cannot be brought back [from his unlawful deportation to El Salvador] because his continued imprisonment there — and the success of its underlying claim that the U.S. doesn’t have the authority to bring him back — is key to the [Donald] Trump administration’s lawless plans to create an outside-the-law prison system to hold anyone it dislikes, including U.S. citizens.”[1] Indeed, Supreme Court Justice Sonia Sotomayer had warned in a concurring opinion ordering the Trump administration to “facilitate” Abrego Garcia’s return that “[t]he Government’s argument . . . implies that it could deport and incarcerate any person, including U. S. citizens, without legal consequence, so long as it does so before a court can intervene. See Trump v. J. G. G., 604 U. S. ___, ___ (2025) (SOTOMAYOR, J., dissenting).”[2]
Geidner compares this case to the use of Guantanamo following the 9/11 attacks to evade habeas corpusprotections to indefinitely detain terrorism suspects, where “in 2008, the [George W. Bush administration] unsuccessfully argued that ‘the United States does not claim sovereignty over [the naval station]’ — despite having been there ‘for over 100 years,’ under a long-term lease since 1903 — and, as such, those people sent there had no habeas right. The Supreme Court rejected that argument in Boumediene v. Bush, holding that ‘[o]ur basic charter cannot be contracted away like this.’”[3]
We can agree with Geidner’s reasoning but observe differences in the two cases: First, today’s Supreme Court is much more white Christian nationalist-friendly than the one in 2008; and second, where the U.S. claim of non-sovereignty over Guantanamo might be suspect, the same cannot be said, as Geidner notes, of such a claim over El Salvador, where Abrego Garcia is being held.[4]
We should also recall that Trump constructs “real Amerikkkans” narrowly, largely limiting the category to the demographic from which he draws the majority of his support. Last year, Eric Taylor Woods and Robert Schertzer noted Trump’s “ability to tap into an ‘ethno-nationalist’ tradition of American identity in his campaign rhetoric. This tradition of American identity is based on a set of criteria (including being white, Christian, native-born, and English-speaking) to define who is a ‘real’ American, and who is not. Trump uses this vision of American identity to garner support from white Americans by campaigning on the idea that he will defend them from the threat posed by people who are not perceived as real Americans – particularly the ostensible threat posed by undocumented migrants.”[5] With this, Trump taps into what Kim Messick identified in 2013 as “an electorate that is largely rural, Southern and white. These voters, who figure prominently in the Tea Party, often decline to interpret political conflict as a struggle among interest groups or a good-faith clash of opinion. Instead, they tend to identify the country as a whole with an idealized version of themselves, and to equate any dissent from their values with disloyalty by alien, ‘un-American’ forces.”[6]
But with Trump’s two presidential election victories, there can be no question that this electorate is much more broadly based than in the South (the old Confederacy of the U.S. Civil War). Indeed, I was in for a rude awakening when I arrived in Pittsburgh in 2019 to find a ubiquity of Confederate flags, often right along side U.S. flags, Trump campaign flags (dating from the 2016 election), and expressions of support for gun rights (that all too obviously sought to defend against Black people) and for white supremacist gangs (the “police”).
It's the rest of us, regardless of race, religion, ethnicity, or native language, whom Trump construes as ‘un-Amerikkkan,’ who are all-too-unsurprisingly now at risk. Habeas corpus, as a legal doctrine, dates to the Magna Carta of 1215. It was an early constraint on “the king’s ‘divine right to incarcerate people.’” Without it, the government cannot be required to produce “the body;”[7] people can be ‘disappeared’ to hellholes like in El Salvador or Guantanamo Bay on the merest whim of the ‘king.’ And its abolition surely entices any wannabe authoritarian.
It seems inevitable that Abrego Garcia’s case will eventually find its way back to the Supreme Court. We shall see then whether the Court will indeed proclaim King Donald.
Update, May 9, 2025: Donald Trump and his administration are reportedly actively discussing suspending habeas corpus.[8]
[1] Chris Geidner, “Trump told us the horrifying reason why Kilmar Abrego Garcia is not back in the U.S.,” Law Dork, April 14, 2025, https://www.lawdork.com/p/trump-told-us-the-horrifying-reason
[2] Sonia Sotomayer, quoted in Chris Geidner, “SCOTUS says Trump admin must ‘facilitate’ Kilmar Abrego Garcia's return,” Law Dork, April 10, 2025, https://www.lawdork.com/p/breaking-scotus-says-trump-admin
[3] Chris Geidner, “Trump told us the horrifying reason why Kilmar Abrego Garcia is not back in the U.S.,” Law Dork, April 14, 2025, https://www.lawdork.com/p/trump-told-us-the-horrifying-reason
[4] Chris Geidner, “Trump told us the horrifying reason why Kilmar Abrego Garcia is not back in the U.S.,” Law Dork, April 14, 2025, https://www.lawdork.com/p/trump-told-us-the-horrifying-reason
[5] Eric Taylor Woods and Robert Schertzer, “How Trump’s definition of a ‘real’ American has grabbed his audience – and what our research shows about why,” Conversation, June 3, 2024, https://theconversation.com/how-trumps-definition-of-a-real-american-has-grabbed-his-audience-and-what-our-research-shows-about-why-225403
[6] Kim Messick, “Modern GOP is still the party of Dixie,” Salon, October 12, 2013,https://www.salon.com/2013/10/12/modern_gop_is_still_the_party_of_dixie/
[7] Legal Information Institute, “habeas corpus,” Cornell University, March 2022, https://www.law.cornell.edu/wex/habeas_corpus
[8] Kaitlan Collins, Samantha Waldenberg, and Tierney Sneed, “Trump involved in discussions over suspending habeas corpus, sources say,” Cable News Network, May 9, 2025, https://www.cnn.com/2025/05/09/politics/miller-habeas-corpus-immigrant-judge