Homeland Security Secretary Kristi Noem on Wednesday lent some support to calls to suspend habeas corpus as part of the administration’s immigration crackdown after aide Stephen Miller said the White House was considering the idea.
A writ of habeas corpus compels authorities to produce an individual they are holding and to justify their confinement, and the Constitution only allows its suspension in limited circumstances — “in Cases of Rebellion or Invasion the public Safety may require it.”
During an appearance before lawmakers, Noem was asked about whether a suspension would meet those conditions.
“I’m not a constitutional lawyer, but I believe it does,” she said in response to a question from Rep. Eli Crane (R-Ariz.).
Crane had said the Biden administration “allowed an invasion into our country.”
Noem said it was “not in my purview” to consider such a weighty legal decision but said President Trump had not made a decision on the matter.
“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,” she said.
Habeas corpus has been a key avenue migrants have used to challenge pending deportations under the Alien Enemies Act, a rarely used 18th-century law Trump has cited to deport Venezuelan nationals he’s accused of being gang members to a notorious megaprison in El Salvador.
It’s also been how recently detained students such as Rümeysa Öztürk and Mahmoud Khalil have challenged their detention.
“Well, 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 in a time of invasion,” Miller told reporters at the White House.
“So, it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”
Steve Vladeck, a national security law expert who teaches at Georgetown University, previously wrote in a blog post that the requirement that suspension of habeas corpus would advance public safety is key.
“The whole point is that the default is for judicial review except when there is a specific national security emergency in which judicial review could itself exacerbate the emergency. The emergency itself isn’t enough,” he wrote on his blog.
“Miller also doesn’t deign to mention that the near-universal consensus is that only Congress can suspend habeas corpus.”
This story was updated at 2:37 p.m.
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