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The Department of Homeland Security oversees tens of thousands of arrests and detentions in the United States every year. It should go without saying that the department is responsible for ensuring that anyone in its custody is treated in accordance with the Constitution. It has long been clear that Homeland Security Secretary Kristi Noem is wholly unqualified to uphold that responsibility, but nowhere was it more apparent than Tuesday on Capitol Hill.
During a hearing of the Senate Homeland Security Committee on Tuesday, Noem was asked by Sen. Maggie Hassan (D-N.H.): “What is habeas corpus?”
“Well habeas corpus is a constitutional right that the president has to be able to remove people from this country,” Noem replied, adding that Abraham Lincoln “used it.”
Hassan interjected, noting that Noem was completely wrong. Habeas corpus, which is Latin for “you have the body,” is a person’s right to challenge their detention, and requires the government to prove the detention is legally justified. Noem’s response was literally the opposite of what habeus corpus actually means.
According to the Constitution, the president does not have the authority to unilaterally suspend habeas corpus, and such a declaration must be approved by Congress. Earlier this month, White House Deputy Chief of Staff Stephen Miller suggested that the Trump administration was looking to suspend the habeas corpus rights of migrants in order to eliminate potential challenges to their detention and deportation.
“If not for that protection, the government could simply arrest people, including American citizens, and hold them indefinitely for no reason,” Hassan added. “So, Secretary Noem, do you support the core protection that habeas corpus provides that the government must provide a public reason in order to detain and imprison someone?”
Noem responded that while she supports the principle, she also had to “recognize that the president of the United States has the authority under the Constitution to decide if it should be suspended or not.”
Hassan reminded Noem that such a suspension had “never been done without approval of Congress and that “even Abraham Lincoln got retroactive approval from Congress.”
Later in the hearing, Noem was asked by Sen. Andy Kim (D-N.J.) if she understood “that any suspension of habeas corpus requires an act of Congress?”
Noem replied: “President Lincoln executed habeas corpus in the past with a retroactive action of Congress. I believe that any president that was able to do that in the past, it should be afforded to our current-day president.” Noem claimed that while Trump hadn’t directly indicated he planned a suspension, she felt he had the right to do so if so inclined.
When pressed, Noem could not name what constitutional article or section outlines the power, nor could she say how many times it had been invoked in American history.
“Do you know which branch of government Article 1 outlines the tasks and the responsibilities for?” Kim asked, after informing Noem that the suspension clause was found in Article 1.
“Yes,” Noem replied. “Congress.”
