Homeland Security Secretary Kristi Noem asserts that Constitutional Provisions permit individuals to legally contest government detentions. This is a mechanism that the Trump administration could utilize for a wider crackdown at the US-Mexico border. She contended that Habeas Corpus is “the constitutional right that allows the President to remove individuals from this country and suspend their rights.”
In her testimony before a Congressional Committee on Tuesday, Noem responded to Senator Maggie Hassan, who asked for a clarification of a legal concept.
“That’s incorrect,” New Hampshire Democrats quickly interjected, challenging Noem and asserting the need for “legal principles requiring the government to provide public justification for detaining and imprisoning individuals.” Hassan, a former attorney who practiced in Boston, emphasized the fundamental right that distinguishes a free society like America from an oppressive regime like North Korea.
The exchange followed remarks from White House Deputy Chief of Staff Stephen Miller, who indicated earlier this month that President Donald Trump was exploring ways to extend his administration’s legal powers to deport immigrants unlawfully. To facilitate this, Miller stated the administration is “actively examining habeas corpus options.”
AP Audio: Trump’s Homeland Security Secretary states that habeas corpus will be used to “exclude individuals from this country.”
Associated Press Washington correspondent Sagar Meghani reports that Homeland Security Secretary Kristi Noem was called upon due to her unconventional interpretation of constitutional principles.
What is habeas corpus?
The Latin term translates to “you have a body.” Federal courts utilize habeas warrants to bring prisoners before an unbiased judge to assess the legality of their imprisonment.
Habeas Corpus was incorporated into the Constitution as a legacy from common English law, following the Habeas Corpus Act of 1679, which aimed to ensure that the king would release prisoners when legal justification for their incarceration was lacking.
The Constitution’s Suspension Clause, found in the second clause of Section 9 of Article 1, states that habeas corpus “shall not be suspended unless the public safety requires it in cases of rebellion or invasion.”
Has it ever been suspended before?
Yes, the United States has suspended habeas corpus under various circumstances throughout its history, often with legislative approval. However, such approval is highly unlikely today due to the slim Republican majority in Congress.
President Abraham Lincoln suspended habeas corpus multiple times during the Civil War, starting in 1861 to detain spies and Confederate sympathizers. He disregarded a ruling by Supreme Court Justice Roger Taney, leading to Congress permitting the suspension in 1863, allowing Lincoln to continue.
Likewise, under President Ulysses S. Grant, habeas corpus was suspended in parts of South Carolina due to the Civil Rights Act of 1871, aimed at countering violence and threats from groups opposing Reconstruction.
In 1905, a suspension was enacted in two Philippine states amid concerns over a potential rebellion.
Before becoming a Supreme Court justice, Amy Coney Barrett co-authored One, which indicated that “the text does not specify which branches have the authority to suspend habeas privileges, but consensus holds that only Congress can do so.”
What has the Trump administration said about suspending it?
Miller noted that the administration is considering an attempt.
“The Constitution is explicit, and it is the highest law of the land; the privilege of habeas corpus may be suspended in times of invasion,” he told reporters outside the White House on May 9.
“We are actively exploring that option,” Miller further stated. “Much depends on whether the courts take the appropriate actions.”
When Hassan questioned Noem on Tuesday about her support for this provision, Noem mentioned, “The US president has the authority to determine whether it should be suspended under the Constitution.”
When asked if she would adhere to a court order overturning a theoretical suspension of habeas corpus, or follow Trump’s directive, Noem replied, “Like the president, I follow all court orders,” and suggested that Hassan was misinformed.
John Bloom, a professor at Cornell Law School, remarked that Noem’s response to Hassan indicated either a fundamental misunderstanding of habeas corpus or a willingness to provide a false answer to appease the president.
If the administration argues suspension of constitutional provisions due to what Trump officials characterize as “threats” from immigrants, Bloom expressed concern that such a stance would likely not succeed in the U.S. Supreme Court.
Can the Trump administration proceed with that?
They can attempt. Miller claimed that the U.S. faces an “invasion” of immigrants, and while the term was used strategically, efforts to suspend habeas corpus would likely face legal challenges questioning whether such an invasion genuinely exists.
Federal judges have shown skepticism toward the Trump administration’s past initiatives to employ extraordinary measures for expedited deportation, which could complicate attempts to suspend habeas corpus.
In March, Trump alleged that the U.S. was under “invasion” by Venezuelan criminal gangs, leveraging the Alien Enemy Act of 1798 as wartime authority to hasten mass deportations. His administration acted swiftly to expel members of the notorious Tren de Aragua from El Salvador’s prisons, resulting in numerous legal confrontations.
Courts across the U.S.—including in New York, Colorado, Texas, and Pennsylvania—subsequently blocked the use of the Alien Enemy Act due to various concerns, particularly regarding whether an actual invasion was occurring.
How can you suspend habeas corpus if the courts are already skeptical?
It’s crucial as the argument among judges opposed to the administration suggests that the judicial branch may not have the authority to adjudicate.
“Congress has enacted a series of laws known as the Immigration Nationality Act, granting the judicial branch jurisdiction over immigration cases, as per Article 3,” he stated earlier this month.
The law was passed in 1952 and significantly amended in 1996 and 2005, with provisions allowing for specific cases to be directed to immigration courts under executive supervision.
Nonetheless, most appeals in these matters are primarily processed through the judicial branch and may encounter similar issues faced by Trump’s attempts utilizing the Alien Enemy Act.
The American government operates under a system divided into three branches: the executive (President), legislative (Congress), and judiciary (Courts).
Have other administrations attempted this?
Technically, not since Pearl Harbor has habeas corpus been the focal point of major legal challenges in recent times.
Republican President George W. Bush did not suspend habeas corpus following the September 11 attacks, but his administration subsequently sent detainees to Guantanamo Bay, Cuba, leading to lawsuits from advocates who claimed that the administration violated habeas corpus and other constitutional protections.
In 2008, the Supreme Court determined that Guantanamo detainees possess constitutional rights to habeas corpus, allowing them to challenge their detention before a judge, which resulted in the release of certain detainees.
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Associated Press writers Weissert and Mark Sherman contributed to this report.
Source: apnews.com