Habeas corpus gives Trump right ‘to remove people’

Homeland Security Secretary Kristi Noem said Tuesday that President Donald Trump has an absolute right to deport people without due process, after she incorrectly defined the meaning of the term habeas corpus.

Noem was grilled on habeas corpus — the constitutional right of individuals to challenge their detention by the government in a court of law — during the Senate hearing.

“Secretary Noem, what is habeas corpus?” asked Sen. Maggie Hassan, D-N.H.

“Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country,” Noem replied.

“That’s incorrect,” Hassan interjected. “Habeas corpus is the foundational right that separates free societies like America from police states like North Korea.”

In response to a request for comment on Noem’s claim, DHS assistant secretary Tricia McLaughlin told CNBC, “Secretary Noem was right: 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.”

Noem’s remarks were notable because she leads the agency carrying out an unprecedented campaign of detentions and deportations that courts have ruled violate detainees habeas corpus rights.

Earlier this month, White House deputy chief of staff for policy Stephen Miller floated suspending the writ of habeas corpus for migrants, by claiming that “the privilege of the writ of habeas corpus can be suspended in time of invasion.”

In mid-March, Trump issued an executive proclamation that invoked an 18th century wartime law, the Alien Enemies Act, to claim that a Venezuelan street gang known as Tren de Aragua was “perpetrating an invasion” of the United States.

That proclamation declared that any Venezuelan over 14 years of age who belonged to the gang and was not a naturalized or lawful resident was subject to removal and “chargeable with actual hostility against the United States.”

U.S. authorities quickly moved to unilaterally detain and deport scores of Venezuelans, by claiming they were members of the group, denying them the due process to challenge their detentions and deportations.

One group of Venezuelan detainees who were about to be deported to El Salvador argued in court that they were not given enough time or resources to challenge their detentions, accusing the United States of violating their right of habeas corpus.

The Supreme Court on Friday granted the detainees’ request to block their removal from the United States under the Alien Enemies Act.

In a 7-2 decision, the court said the Trump administration had not given the detainees enough time or adequate resources to challenge their deportations.

“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 unsigned ruling said.

The writ of habeas corpus has been suspended only four times since the U.S. Constitution was ratified. In three of four of those instances, Congress first authorized the suspension.