In a tense exchange during a Senate hearing on Tuesday, Democratic Sen. Maggie Hassan asked Homeland Security Secretary Kristi Noem if she could define “habeas corpus.”
“Habeas corpus” is the constitutional right that ensures that people have a chance to challenge their imprisonment in front of a judge. Habeas corpus ensures that the government cannot detain someone without a lawful basis.
But Noem, head of the Department of Homeland Security, gave a very different definition. She instead incorrectly stated that habeas corpus was the “right that the president has to be able to remove people from this country.”
Habeas corpus is now in the Trump administration’s crosshairs, as the president has repeatedly complained that such protections are slowing down his mass deportation agenda. In an attempt to circumvent some of these protections, President Trump invoked the centuries-old “Alien Enemies Act,” which allows the U.S. government to rapidly remove certain noncitizens considered to be an “enemy of the United States” during wartime without giving them the opportunity to challenge their detention and removal.
Hundreds of Venezuelan men have already been targeted by the administration and removed under the Alien Enemies Act since it was invoked in March. These removals have been the subject of numerous lawsuits. However, many judges, including all nine justices on the U.S. Supreme Court, have made clear that these men are entitled to due process including an opportunity to challenge their detention through habeas corpus.
Tuesday’s exchange also came after White House advisor Stephen Miller recently told reporters that the administration was “actively looking at” suspending the right to habeas corpus altogether.
Could the administration do that? Here’s a look at the mechanics behind habeas corpus.
How habeas corpus works
Habeas corpus offers the same protections for anyone residing in the United States, regardless of their citizenship status.
If someone believes they have been unlawfully detained, they can go before a federal judge and ask for the judge to issue a writ of habeas corpus, which is a court order. That order demands that the government—whether federal, state, or local—comes to court and proves that it has the authority to keep that person detained. If the federal judge finds that the government doesn’t have legal grounds to do so, then that person must be set free.
In the immigration context, individuals generally need to have exhausted all other avenues for release before they can file a habeas petition.
But because the Trump administration has expanded mandatory detention, more people in immigration detention aren’t getting access to basic procedures like bond hearings which give them a chance in immigration court to make a case for release. Without the standard chance to make a case for their release, they are forced to file a habeas petition in federal court.
When do noncitizens file a habeas corpus petition?
Writs of habeas corpus are not given lightly; federal judges don’t simply release anyone who has filed a petition. In some cases, habeas corpus petitions are granted to noncitizens who have already been ordered deported from the United States.
In the 2001 Supreme Court case Zadvydas v. Davis, the justices ruled that a person with a final order of removal cannot be detained for more than six months unless the government can prove they plan to deport the person in the foreseeable future. However, in some instances the government nevertheless has kept people with final orders of removal indefinitely detained. In these cases, detained people have regularly used habeas petitions to make their case for release given the Supreme Court decision in Zadvydas. In other words, habeas corpus serves as a check on the executive branch—making sure they follow the rules as interpreted by the Supreme Court.
Noncitizens also used habeas petitions to be released from detention during the COVID pandemic. They argued that, given the high likelihood that they would contract COVID in tight, often unsanitary quarters in detention, the government was infringing on their rights related to their health.
Can the president suspend habeas corpus?
Only Congress—not the president—can suspend habeas corpus.
Habeas corpus may only be suspended under rare exceptions, like in cases of invasion, rebellion, or significant public safety threats. These exceptions can only be put forward by Congress. When the executive branch previously tried to encroach on that power, courts struck it down.
The courts made it clear that there are minimum due process requirements in the Constitution. If they are to be waived, it must be done by Congress.
Habeas corpus has been suspended just four times in U.S. history, most recently after the attack on Pearl Harbor in 1941. The likelihood of it happening again, even under a Trump-controlled Congress, are incredibly slim.
The legal principle of habeas corpus is at the core of American values of personal and physical liberty. As Sen. Hassan put it during the recent Senate hearing, it is “the foundational right that separates free societies like America from police states like North Korea.”
This remains true whether our elected officials know the definition or not.
FILED UNDER: Department of Homeland Security, Trump administration
