Can Trump suspend habeas corpus?

Among the responsibilities of the Department of Homeland Security is running the civics tests that immigrants need to pass to become U.S. citizens. And this week, the head of that department, Secretary Kristi Noem, got her own pop quiz on civics. Good morning, Madam Secretary. This was at a Senate hearing, and this question came from Democratic Senator Maggie Hassan of New Hampshire. Secretary Noam, what is habeas corpus?

Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country and suspend their right to... Let me stop you, ma'am. Habeas corpus, excuse me, that's incorrect. It is indeed incorrect. As Hassan goes on to lay out, habeas corpus is the legal principle enshrined in the Constitution that protects people from illegal detention.

The reason that this bit of Latin is currently under discussion is because the Trump administration says it's considering suspending habeas corpus. Deputy White House Chief of Staff Stephen Miller said this.

to reporters earlier this month 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 innovation so that's an option we're actively looking at Corpus has been at the center of the legal fights over President Trump's mass deportation plan.

Some of his actions have been temporarily blocked by courts over concerns that immigrants didn't have enough opportunity to challenge their deportation through habeas corpus petition. And Miller seemed to suggest that suspending habeas corpus was a way to get around the courts. Look, a lot of it depends on whether the courts do the right thing or not.

Consider this. Habeas corpus is a principle that's hundreds of years older than America itself. What would it mean if the president suspended it, and could he, under the Constitution? From NPR, I'm Elsa Chang. This is Fresh Air Contributor Anne Marie Baldonado. I talked with actor Cole Escola about their hit Broadway play, Oh Mary. Cole plays an unhinged alcoholic Mary Todd Lincoln, who's an aspiring cabaret performer.

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consider this from NPR. Amanda Tyler wrote the book on habeas corpus. Actually, two books and a bunch of law review articles. She's a professor of law at the University of California, Berkeley, and we reached out to her to talk through habeas corpus and President Trump's plan. So I just want to start with the very basics here. Under the U.S. Constitution, what is habeas corpus and what does it protect again?

Well, literally, habeas corpus is to undergo and receive the body. And what does that mean? It means that in Anglo-American legal tradition, Courts have the right and indeed the obligation when asked to look into the legal justification for someone being arrested and detained by the government. And so for centuries, that is the role that courts have played. work to ensure that the executive, whether it's the King of England or the President of the United States,

is not detaining somebody illegally. Right. And in very plain terms, why should the average American care very much about habeas corpus? It would be hard to overstate the importance of habeas corpus. in our constitutional tradition because it goes to our very personal liberty, our freedom. and we have always had that security except for in the very rare situations of suspension. that we could go to a court if we're being deprived of our liberty unlawfully and win redress, win release.

Well, the White House Deputy Chief of Staff, Stephen Miller, told reporters that the Trump administration was considering suspending habeas corpus. How big of a deal is it? It is such a big deal. We've had suspensions only extremely rarely in American history. in situations like the Civil War and the bombing of Pearl Harbor, and specifically what the Constitution requires is a rebellion or invasion, and for the public's safety to warrant

suspension. And the effect of a suspension is effectively to shutter the cord. And that's why, in a case that was argued to the Supreme Court after 9-11, late Justice Souter once said, suspension is just about the most stupendously significant thing the government can do.

Can you explain why the phrase habeas corpus is even coming up in the courts right now with respect to President Trump's immigration actions? The reason it's coming up and become so prominent is because all of the challenges to the president's actions in this immigration context and all of the removals that he's trying to undertake, particularly under his proclamation.

with respect to the Alien Enemies Act, they're all coming through habeas petitions brought by individuals who have been arrested and are being detained and are at risk of being removed from the country expeditiously. in large measure I should say because the Supreme Court has in an early emergency order a few weeks ago said this is how they should proceed. Okay. You mentioned that there are some limited circumstances under which habeas corpus could be constitutionally suspended.

Can you first talk about whether the President of the United States can unilaterally suspend habeas corpus? This is a really important question, and the answer is a categorical no. The president does not have the power to suspend habeas ahead of Congress. The founding generation, first and foremost, put the suspension clause in Article I of the Constitution, which is the legislative article. Congress. Right. That is the article that governs how Congress.

its powers, how it's assembled, etc. So is there an example in U.S. history where a president tried to unilaterally suspend habeas corpus? Yes, I mean, the classic example here is Abraham Lincoln. And a lot of people point to his example as supporting the notion that the president has this power. But the story is a lot more complex. Because as he was proclaiming suspensions on his own, courts were questioning his actions right and left.

And so the Lincoln administration actually went eventually to Congress and said, we really need legal cover. We need you to pass suspension legislation and after Congress did so, he not only issued a new suspension, he specifically referenced the legislation that Congress had passed as justifying it. And in so doing, I think Lincoln all but conceded that he had been acting unlawfully up until that point. Well, this current Supreme Court

has been willing or seems to be willing to grant the president very broad powers. How do you see Stephen Miller's argument, the Trump administration's argument? going before the current justices if President Trump does attempt to suspend habeas corpus with respect to his immigration actions. There are so many issues that will come up if the president were to do this. There's the first question of whether the president has the power to do this. And this is a court that is

populated with a number of justices who care very deeply about history, and many of whom are originalists. And so they're going to care a lot about what the founding generation thought. And there's just really overwhelming evidence. that the president doesn't have this power. So I think that would be probably the start and end.

But if the court were to go further, it would also look at whether there is potentially an invasion or rebellion that justifies the suspension. And the court may have to do that in any event. Because by invoking the Alien Enemies Act, President Trump has declared that there is an invasion and that's the predicate for him having exercised that emergency power. And that issue is now percolating in the lower court. And I think the case for the administration's position is very weak here.

Amanda Tyler is a professor of law at the University of California, Berkeley, and the author of Habeas Corpus in Wartime, from the Tower of London to Guantanamo Bay. Thank you very much for speaking with us. Thank you. This episode was produced by Connor Donovan. It was edited by Courtney Dorning. Our executive producer is Sammy Yennigan. And we want to take a moment to thank our Consider This Plus listeners who support the work of NPR journalists.

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