05.11.2025

[00:00:00] Welcome to Discourse where we cut through the noise and make sense of the chaos. I'm your host, Wayne Unger. I'm a law professor and former Silicon Valley nerd, and I've spent years breaking down complex topics into digestible takeaways. And on this podcast, we'll take a deep dive into the pressing issues shaping our world in law.

Politics, technology, business and more. No echo chambers, no corporate influence. Just thoughtful analysis and respectful civic dialogue because understanding different perspectives isn't just important. It's necessary. Let's get started.

 All right. Welcome back to Discourse. I'm your host, Wayne Unger, and we are recording today's episode at 9:00 AM on Monday, May 12th. And of course, as always, things may have changed since on today's episode. First. We are at that one month anniversary of Trump's tariffs and a big announcement this morning that China and the United States are relaxing the tariffs for the next 90 days as the countries [00:01:00] negotiate a trade deal.

Second, a top White House advisor Steven Miller told the press that the administration is considering how to suspend the right of habeas corpus to circumvent the due process rights of migrants and foreign nationals regardless of whether they are lawfully present in the United States or not.

To start us off, let's briefly recap the last 45 days or so. You might recall that about four to five weeks ago, Trump invoked his statutory authority to impose tariffs, and last month Trump announced 10% tariffs on all countries as kind of like a baseline tariff and individualized, reciprocal higher tariffs on countries with which the United States has the largest trade deficits.

There were several exemptions such as semiconductors and pharmaceuticals. The stock and bond markets responded negatively to the news. Business executives denounced the plans, although I note that some expressed their support. Media [00:02:00] began reporting on the effects of broad tariffs, including this podcast.

We did the same. Bankers and economists changed their predictions regarding the imminence of a recession and consumer confidence. Plummeted. Then quite suddenly, the Trump administration decided to roll back parts of its tariff plan. What remains, at least as of today, is the 10% baseline tariff and well sort of a 145% tariff on all goods from China.

I. I say sort of because just the other day, Trump said that he was not willing to pull back the tariffs on Chinese goods. But this morning, May 12th, the Trump administration announced the rollback of the tariffs with China for the next 90 days as the sides continue to negotiate a trade deal. But to be clear, both sides are not reducing the tariffs to zero.

China will continue to tariff American goods at about 10% according to [00:03:00] NPR, and the United States will continue to tariff Chinese goods at approximately 30%. Again, according to NPR, as those negotiations play out. According to NBC News, the Trump administration announced a deal with the United Kingdom, where the United Kingdom will reduce non tariff barriers to United States products including beef, ethanol, fuel, machinery, and chemicals.

What about the US imports from the uk? Well, NBC news reports that the tariff on British vehicles will drop from 25% to 10%, and Trump promised that the UK that he would eliminate the 25% tariff on all steel coming out of the uk. As of this recording, it appears that the deal has yet to be finalized, so perhaps I'll describe it simply as a deal in principle.

According to USA today, the UK is the ninth largest trading partner with United States. And the United States has historically [00:04:00] maintained a $12 billion trade surplus, meaning that we've exported more to the United Kingdom than we have. Imported from there. Now most of our everyday essentials do not come from the uk.

We know this. We know that most of our everyday goods like clothing, shoes, household goods, et cetera, are actually produced in Asia. And as I mentioned earlier on this episode, we are significantly reducing the tariffs with China for the next 90 days.

Regardless. As a consumer, you likely haven't seen any major changes yet, at least not at the store or on the shelves. In other words, the ripple effect of the 145% Chinese tariffs have really yet to hit our shores. Perhaps you're thinking Trump implemented these tariffs and prices are fine. Inventory levels are fine.

I can still find and buy everything that I need, but here's the thing. The majority of goods that the United States [00:05:00] imports from Asia is shipped to the United States via ocean freight. Those big container ships and ocean freight from Asia typically takes approximately 30 to 40 days to get from Asia to the west coast of the United States, such as the Port of Long Beach or the Port of Los Angeles, where those containers are then offloaded off the ships, put onto semi-truck, and then shipped around the country on those big rigs.

And manufacturers and importers rely heavily on ocean freight because it is the least expensive method of transport. Here's the head of the Port of Los Angeles speaking about the state of ocean freight as of a couple of days ago.

How much volume has just dropped off in the last few weeks?

Yeah, about a third of the import volume, which means give or take, about 50,000, 20 foot equivalent units gone off the arrivals coming in next week

From, from next week is when you expect to see this really hit. That's correct, and that matches up the announcements back on [00:06:00] April 2nd. Then on April 8th, a little bit of a change on everybody ex China, Mexico, Canada, and those arrivals are coming at us this weekend.

We'll, of course, dedicate time to your port, but I'm just wondering how you are anticipating this rolls and ripples through the economy from here, how it hits trucking when this turns up on the shelf. What's the distance, the time from when you see a drop off in volume and when we as consumers. See the shortages, right?

So CEOs are telling me, hit the pause button, right? I'm not gonna import anymore at these kind of prices. Let's wait and see. I don't know if it's gonna be two hours, two days, or two weeks till I get some clarity Then. Hiring off the table for right now, capital investment, pause. And the retailers are telling me that realistically with ev, even the 10%, I'm gonna have to pass it on to the consumers.

So, so how much is this really coming from all over? It's not just about China. This is about really global trade coming to a standstill. Yeah. When I was last with you all, Lisa, I said, global trade's gonna slow, economies will follow.

So the trucker [00:07:00] hauling four or five containers today, next week she probably hauls two or three. The dock workers are no longer gonna see overtime and double shifts. They're gonna probably work less than a traditional work week. Starting right off the bat. That's every four containers mean a job.

So when we start dialing this back, it's less job opportunities. And what happens if we get a deal? If we get a deal, it's gonna take about a month. Let me walk you through that real quick. About two weeks to get the ships repositioned around these major ports from Qingdao to Shanghai to shaman, load up all those containers, and then another two weeks to steam across the Pacific to get to us.

The Flexport, CEO joined us earlier in the week and he said, ocean fried is down 60% from China. When do we see a hundred percent? Good question. It depends on how long this goes. The other thing is that retailers are saying, we've got about five to seven weeks of normal inventory in the country right now. Then we start to see spot shortages. If it goes on much beyond this.

You just heard the executive director of the Port of [00:08:00] Los Angeles, gene Soroka, and he's the one that's saying, here's what we are seeing at the Port of Los Angeles.

Here is what trade looks like due to these tariffs. Now he is. Without question, an expert in supply chains, and as you heard from him, the effects of Trump's tariffs are showing at ports of entry. Shipping volume is significantly less than it was at this time last year. And so what does this mean? Well, this means that since the amount of goods coming from Asia is significantly lower today due to the Trump tariffs, that decrease in the amount of goods is going to hit stores in the coming weeks because again, it takes approximately 30 to 40 days or so for an Asian import to reach its final destination.

Now, that said, as the executive director of the Port of Los Angeles just told us. It takes about a month or so for [00:09:00] everything to catch up. So even though the Trump administration announced a kind of rollback of the Chinese tariffs this morning, it will still take about a month for everything to catch up.

But the goods are no longer subject to the 145% tariff rates. Right? Well, that's true, but the mere threat of tariffs led to a decreased in shipping volume as the head of the Port of Los Angeles said on that clip. So until shipments pick up again, will likely see some inventory shortages on the shelves at our local stores.

And if we zoom out, and I still believe it is way too early to tell, but it appears, at least to me, that the Trump tariffs this strategy and chaos is disrupting the current international trade model. In other words, Trump's strategy might be working because to give credit where credit is due, China is at the table negotiating a trade [00:10:00] deal, and I said in a past episode that either Trump will go down as the worst president in history if this trade war does not return a new international trade model beneficial to the United States, or he'll go down as a great president if all of this works to me, it is still too early to tell, but at least from my perspective, from where I sit today.

Trying to be fair and reasonable. It appears to be heading in the right direction.

Thank you for listening to Discourse. We are excited and honored to announce that you all have put us in the top 60 of News Commentary, podcasts in the United States. On Apple Podcasts. So thank you once again. We'd like to continue making this podcast available to you without commercials. To help us continue this work commercial free, please join us as a subscriber and support us with a monthly contribution.

Visit discourse pod.org and click the support button [00:11:00] today.

Turning to our second story of the day, white House advisor Steven Miller, told reporters last week that the Trump administration is considering ways to end due process protections known as habeas corpus for immigrants who are unlawfully present in the United States. And all of this is according to NBC News.

 President Trump has talked about potentially suspending, uh, Ian Corpus to take care of the illegal immigration problem. When could we see that happen, do you think? Well, the constitution is clear, and that of course is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion.

So I would say that's an option we're actively looking at. Look, a lot of it depends on whether the courts do the right thing or not. At the end of the day, Congress passed a body of law known as the Immigration Nationality Act, which stripped Article three courts. That's the judicial branch of a jurisdiction over immigration cases.

So Congress [00:12:00] actually passed, it's called jurisdiction stripping legislation. It passed a number of laws that say that the Article three courts. Aren't even allowed to be involved in immigration cases. So it's not just the courts aren't just at war with the executive branch, the courts are at war. These radical rogue judges with the legislative branch as well too.

So all of that will inform the choice that the president ultimately makes.

On that clip, you heard Stephen Miller say, quote, the privilege of the writ of habeas corpus can be suspended at a time of invasion. So first, what is habeas corpus exactly? You have likely heard the term, but you may not know what it means. Second, can the federal government suspend habeas corpus, and if so, how?

Before I turn to the substance of what he says, let me start by introducing you all to Steven Miller. If you have not heard of him or if you are less familiar with him. Steven Miller was a key advisor during Trump's first administration, and he is now a senior advisor to Trump during his [00:13:00] second administration, and Miller is not shy.

He'll do media interviews and he'll do media interviews when they are confrontational as well. He often gives his thoughts on the law during these interviews, but he is almost always wrong by my judgment. Nonetheless, Miller comments on the law so much. So much that I wanted to look up where he went to law school.

Turns out he didn't go to law school. He has no formal education in the law. He has no legal practice experience. He has no legal background whatsoever. Now, he graduated from Duke, which is a great school with a bachelor's degree in political science. After I learned that Miller did not go to law school, it makes sense of why he is almost always wrong about the law when he opines about it.

Now, I recognize most people and likely most of you all, all of my listeners, do not have formal education or training in the law. And to be crystal clear, I am not saying that you [00:14:00] cannot have opinions regarding the law, but at least with Stephen Miller specifically, he is on TV incorrectly asserting what the law says to millions of Americans.

My point here is this, Steven Miller is not a lawyer. We have to remember that when he speaks for this part of the episode, I'm going to rely heavily on Professor Steve Vick, who's a professor of law at Georgetown University Law School. Professor Vick is a leading scholar in constitutional law, and he spent the first part of his career studying habeas and its history instead of repeatedly signing Professor Vladeck during this episode.

I'm just going to blanket sign him at the beginning here. At the beginning of this segment before we get into it. So thank you Professor Vladek for writing about habeas corpus. Now let's begin with what the Constitution says in Article One, section nine. There is a list of powers denied to Congress.

Clause two specifically states. The [00:15:00] 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. So this prompts the question, what is the writ of habeas corpus? Well, to begin, it roughly translates to quote that you have the body from Latin in this country.

Federal courts can use the writ of habeas corpus to determine if the government's detention or imprisonment of an individual is valid, is lawful, or is constitutional as a prisoner, often via his or her attorney. While a prisoner can file a writ of habeas corpus to bring a prisoner or other detainee before a court to determine if that person's imprisonment or detention is lawful.

Now this is a civil action filed by the prisoner again, often via their attorney against the government agent who holds the defendant in custody. [00:16:00] And it is widely acknowledged, but apparently not by Stephen Miller that the suspension of the writ of habeas corpus is only something that Congress can do.

We know this because most, if not all, of Article one, section nine is directed at Congress. It prohibits Congress from acting in these ways. We also know this because at the Constitutional convention, the first proposal of a suspending authority expressly vested in the legislature, the suspending power.

And even though that language didn't make it into the constitution's final version, Congress' having the sole authority to suspend the writ of habeas corpus was assumed in early commentaries written by the framers of the Constitution who were still very much alive. And this has also been stated time and time again by the United States Supreme Court.

So for example. Chief Justice John Marshall emphasized the importance of habeas [00:17:00] corpus in a decision in 1830. He wrote that the great object of the writ of habeas corpus is the liberation of those who may be imprisoned without sufficient cause. Further, the Supreme Court has recognized that the writ of habeas corpus.

Is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. So let me translate that. The rate of habeas corpus is what you file with a court that challenges your imprisonment or detention and its purpose. Is to protect you as an individual from tyrannical government, one that arbitrarily and lawlessly imprisons or detains you as an individual citizen or not.

You do not want the writ of habeas corpus suspended because it could mean, for instance, that government can round you up for no reason [00:18:00] whatsoever, and you wouldn't be able to challenge it. In this history of the United States, we've had the right of the writ of habeas corpus suspended before, to be fair, for example, president Abraham Lincoln suspended habeas corpus during the Civil War.

But even when President Lincoln did it in a time of clear rebellion, the suspension was limited to Maryland. But once Congress reconvened it failed to pass a bill that approved of Lincoln's actions because again. Only Congress can suspend the writ of habeas corpus. Thus, Lincoln's limited suspension of the writ of habeas corpus was subsequently ruled unconstitutional by the courts.

In other cases, Congress has passed bills that expressly permit the President of the United States to suspend the writ of habeas corpus, which is how President Ulysses S Grant. Did it during reconstruction and President George W. Bush following the [00:19:00] attacks on the United States, the September 11th attacks, he began detaining enemy combatants, who the Bush administration sought to detain indefinitely with, without any charges being filed against them, without any court hearings, and without any legal counsel.

Congress later enacted what they called the Military Commissions Act of 2006, which formally suspended habeas corpus for any person determined to be an unlawful enemy combatant, engaged in hostilities, or having supported hostilities against the United States. Eventually, the United States Supreme Court ruled that every person, including enemy commands.

Every person is entitled to access habeas corpus even when they are declared an enemy combatant. In past episodes, I've discussed the right to procedural due process, which is a [00:20:00] right to notice and an opportunity to be heard. Before government deprives you of life, liberty, or property, it must give you some level of due process.

Now the writ of habeas corpus and the right to due process are intrinsically linked, but the concepts are distinct. See, the writ of habeas corpus, as I mentioned, is about challenging an imprisonment or detention. The right to due process is about constitutionally required process and procedures that must occur before government deprives you of life, liberty, or property.

In theory, a writ of habeas corpus is a form of relief that follows procedural due process. It's one pathway to restoring your liberty that has been taken away from you

now, over the last 25 years or so, several conservatives, like former Attorney General Alberto Gonzalez, have argued that there is no right to habeas corpus. Because it [00:21:00] is not expressly stated in the Constitution. But here's the thing, here's here's my reading of the Constitution. If the Constitution says, which it does, that the writ of habeas corpus cannot be suspended except in times of invasion or rebellion, then that implies that it exists.

It is presumed to exist because think about it. Why would the constitution limit. Its suspension if it did not already exist. Now let's return to Professor Steve Vick's. Research. Professor Vladek states that the framers, the founders, were hell bent on limiting to the most egregious emergencies, the circumstances in which the courts could be cut out of the loop.

In response to Steven Miller Vladek said to casually suggest that habeas might be suspended because the courts have ruled against the executive branch in a handful of immigration cases, turns the suspension [00:22:00] clause entirely on its head. Moreover, the Constitution suspension clause is extremely narrow.

Not only. Suspension only possible in cases of rebellion or invasion, but it is also limited to situations when the public safety may require it. So a rebellion or invasion is simply not enough to support the suspension of a WR of habeas corpus. There needs to be that public safety requirement. But let's consider for a second how and what Steven Miller said in that clip.

He said a lot depends on whether the courts do the right thing or not. Think about what he's saying here. He is saying we'll suspend it if the courts do not agree with what we say. As an executive branch. He's suggesting that the administration would unconstitutionally suspend habeas corpus if it disagrees with how the courts rule on these immigration cases.

You also heard him mention [00:23:00] that the Immigration and Nationality Act strips Article three courts, the federal courts, from their ability to review immigration cases. That is just incorrect. As a matter of law. It does limit their jurisdiction, but in no case has an immigration case been stripped in its entirety from judicial review.

He is suggesting that they'll attempt to cut out an entire branch of government from its authority to check the executive branch, the Trump administration. If the Trump administration does not like what the courts decide, he's suggesting that the Trump administration will suspend one of your constitutional rights, the right of access to the writ of habeas corpus if the Trump administration does not agree with the courts, Once again, as we've seen time and time again by this administration, Stephen Miller is suggesting that the Trump administration will simply [00:24:00] disregard what the courts decide. If the Trump administration does not like it, that isn't just unconstitutional. In my book, I'll go one step further, that is anti-constitutional.

Trump supporters might suggest as they have in the past that the Trump administration is not serious, that it will not actually suspend the writ of habeas corpus. That Miller is just joking. But did that clip of Stephen Miller sound like he was joking? I don't think so. At least not to me. Even if Miller is insincere here, even if the suspension never happens, it is still anti-constitutional and quite frankly, in my opinion, irresponsible to suggest that the Trump administration is perfectly fine with disregarding the federal courts when the courts rule against it.

At the end of the day, here's what this all boils down to, in my opinion. The Trump administration from President Trump [00:25:00] to Secretary Marco Rubio to advisor Steven Miller, continues to wrongfully claim that migrants, those lawfully present in the United States and those unlawfully present in the United States are not entitled to to do process.

And the Trump administration says even if they were entitled. To due process. They don't deserve due process. And even if they try to challenge their detentions or imprisonments via Ritz of habeas corpus, too bad, we'll just suspend it. These are positions of authoritarian rule.

That's it for today's episode of Discourse. Thank you for tuning in and being part of the conversation. You can catch future episodes of discourse wherever you get your podcasts. If you found this discussion insightful, be sure to subscribe, leave a review and share it with others who value thoughtful analysis over [00:26:00] the noise.

You can also join the conversation by visiting discourse paw.org and following me on x and blue sky at Prof Unger for more insights and updates. Until next time, keep thinking critically, stay curious and engage with respect. We'll see you soon.

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