Secretary of Homeland Security Kristi Noem raised eyebrows Tuesday by bungling the definition of habeas corpus, a core tenet of due process in US law, during a Senate hearing.
The botch came during an exchange with Sen. Maggie Hassan (D-NH) that referenced deputy White House chief of staff Stephen Miller’s claim earlier this month that “writ of habeas corpus can be suspended in a time of invasion.”
“Habeas corpus is a constitutional right that the president has to be able to remove people from this country,” Noem replied to Hassan, who had asked for the definition. “President Lincoln used it.”
“Excuse me, that’s incorrect,” interjected Hassan, who spent more than a decade as an attorney before entering politics and gave the actual definition. “Habeas corpus is the legal principle that requires that the government provide a public reason for detaining and imprisoning people.
“If not for that protection, the government could simply arrest people, including American citizens, and hold them indefinitely for no reason,” the senator added, sternly. “Habeas corpus is the foundational right that separates free societies like America from police states like North Korea.”
Pressed again about whether she supports habeas corpus, Noem insisted that she backs the legal principle, but also echoed Miller’s point about the possibility of suspending it.
“I also recognize that the president of the United States has the authority under the Constitution to decide if it should be suspended or not,” the former South Dakota governor said.
Article 1, Section 9 of the Constitution states: “The 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.”
As Noem referenced, Lincoln suspended habeas corpus at the outset of the Civil War in April 1861, allowing for arrest without charge, and ignored a writ issued by Supreme Court Chief Justice Roger Taney finding that only Congress could act in such a way.
In 1863, Congress passed a law retroactively authorizing the suspension of habeas corpus, which remained in effect until the war’s end in April 1865.
“Secretary Noem was right,” DHS spokesperson Tricia McLaughlin told The Post Tuesday. “Presidents have suspended habeas corpus in practice—Lincoln, Grant, FDR, and Bush—all during moments of crisis. Technically, Congress holds that power under the Constitution, but in reality, presidents have acted first, and legal authority followed. The precedent is real.”
Miller’s remarks about suspending habeas corpus earlier this month had spooked Democrats, who have underscored that Trump administration officials have characterized the border crisis as an “invasion.”
“The Constitution is clear,” Miller, the White House deputy chief of staff for policy, told reporters earlier this month. “The privilege of the writ of habeas corpus can be suspended in a time of invasion. So, to say that’s an option we’re actively looking at.”
“A lot of it depends on whether the courts do the right thing or not.”
Under President Trump’s watch, encounters at the southern border plummeted to 12,035 in April, down from 179,737 in April of last year and a Biden administration peak of 301,981 in December 2023, according to data from the US Customs and Border Patrol.
Multiple courts have slapped down some of the Trump administration’s aggressive actions to curtail the border crisis.
Last week, the Supreme Court re-upped its block on Trump’s use of the 18th-century Alien Enemies Act to rapidly deport illegal immigrants via expedited wartime authority instead of traditional deportation channels.
Among its concerns, the high court pointed to the lack of notice given to would-be deportees.
“Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster,” the Supreme Court said in an unsigned order that did not delve into the merits of Trump’s use of the 1798 law.
