By Ted Hesson
WASHINGTON (Reuters) -U.S. Homeland Security Secretary Kristi Noem said on Wednesday that she believes recent levels of illegal immigration could provide a sufficient legal rationale to suspend habeas corpus, the right of someone in the U.S. to challenge their detention.
During a hearing before a U.S. House of Representatives committee, Noem said she thought high levels of illegal border crossings under former President Joe Biden qualified under the U.S. Constitution as a reason to suspend the fundamental right.
Representative Eli Crane, a Republican, asked Noem if she thought migrants illegally crossing the U.S.-Mexico border qualified as a “rebellion or invasion” that could allow for the suspension of habeas corpus.
“I’m not a constitutional lawyer, but I believe it does,” Noem said.
U.S. President Donald Trump kicked off an aggressive immigration enforcement campaign after taking office in January, declaring illegal immigration an “invasion” in an attempt to ramp up deportations. Trump in March invoked a wartime statute to rapidly deport alleged Venezuelan gang members, but the Supreme Court issued an order in April that called for possible deportees to have a chance to contest the removal.
Stephen Miller, a top White House official and the architect of Trump’s immigration agenda, said on Friday that the Trump administration was actively looking at suspending habeas corpus to speed up deportations.
“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 at a time of invasion,” Miller told reporters at the White House. “So I would say that’s an action we’re actively looking at.”
Some legal scholars have questioned whether Trump has the legal authority to suspend habeas corpus due to immigration while others have expressed alarm about the possibility.
The number of migrants caught illegally crossing the U.S. southern border plummeted to record lows after Trump took office in January, undercutting his portrayal of the situation as an emergency.
U.S. Border Patrol arrested 8,400 migrants crossing illegally in April, down from a monthly high of 250,000 in December 2023 under Biden.
Noem declined to say whether she supported actually taking that step and said Trump would make any decision.
“This is something that’s not in my purview to weigh in on,” she said. “This is the president’s prerogative to pursue, and he has not indicated to me that he will or will not be taking that action.”
Representative Julie Johnson, a Democrat from Texas, criticized Trump’s attempt to use the 1798 law, known as the Alien Enemies Act, to bypass standard due process.
“You were intending to wrongfully deport people without access to a court hearing, without access to the rule of law,” Johnson said. “You were not affording people due process and the Supreme Court has now ordered you to do so.”
(Reporting by Ted Hesson in Washington; Editing by Mary Milliken and Deepa Babington)
