Senator Maggie Hassan from New Hampshire recently faced off against Homeland Security Secretary Kristi Noem during a committee hearing discussing habeas corpus.
“What is habeas corpus?” Hassan inquired at the Senate committee focused on Homeland Security and Government Affairs. She explained, “Well, habeas corpus is the constitutional right that allows the president to remove people from this country.”
However, she quickly interjected, saying, “Let me stop you there; habeas corpus—sorry, that’s incorrect.”
Essentially, habeas corpus requires the government to bring anyone they detain before a court to justify the legality of that detention.
This legal principle has become crucial for immigrants contesting administrative actions regarding immigration, notably providing a means for Venezuelans to oppose the Trump administration’s implementation of the Alien Enemy Act of 1798. It has also been invoked in cases involving foreign students and those engaged in Palestinian activities.
“Without this protection, the government could arrest anyone, including American citizens, and hold them indefinitely without cause,” Hassan stated. “Habeas corpus is a fundamental right that differentiates a free society like America from a police state akin to North Korea.”
A Democrat from New Hampshire pressed Noem during the hearing about her stance on habeas corpus.
“I support habeas corpus, and I acknowledge that the US president has the constitutional authority to determine whether it should be suspended,” Noem responded.
This echoes statements made by Stephen Miller, former Vice Chief of Staff, who suggested that the president might consider suspending habeas corpus to facilitate significant deportations without the need for court hearings.
The Constitution specifies that “in cases of rebellion or invasion,” the privilege of habeas corpus can be suspended only when public safety dictates it.
Just last week, Noem suggested that current immigration conditions could necessitate such a suspension. The White House’s actions to unilaterally revoke the warrant by declaring an “invasion” at the southern border could lead to legal challenges.
The restrictions outlined in Article 1 of the Constitution pertain to Congress. However, certain phrasing does not clearly associate the suspension power with Congress, which leaves an opening that the administration believes could empower Trump.
