FOR THE WEEK OF MAY 26, 2025

White House signals possible challenge to a key legal right – court hearings before deportation

A Senate hearing brought a national civics lesson about a legal safeguard with an unusual name. Sen. Maggie Hassan of New Hampshire asked Homeland Security Secretary Kristi Noem last week about a constitutional protection that the Trump administration says it may suspend to ease deportations of undocumented immigrants. "Secretary Noem," the Democrat asked, "what is habeas corpus?" The reply was cut off in mid-sentence (see video below) when the Cabinet member wrongly called it "a constitutional right that the president has to be able to remove people from this country and suspend their right to . . ." The senator jumped in: "No. Let me stop you, ma'am. Excuse me, that's incorrect."

The right of habeas corpus, a Latin phrase pronounced HAY·bee·uhs KOR·puhs, was adopted by England's Parliament in 1679 and became part of the U.S. Constitution's Article I in 1789. It lets anyone in government custody appear in court to challenge the reasons or conditions of confinement – a bedrock principle of law enforcement in democracies. It arose at the Senate hearing because presidential adviser Stephen Miller says suspending that 236-year-old protection is "an option we're actively looking at" to speed deportations. The government so far hasn't convinced judges that it can detain or deport immigrants without hearings, although some were sent to El Salvador despite a court order to turn back planes.

Congress can suspend the right of habeas corpus for public safety "in cases of rebellion or invasion," the Constitution says. (That has happened four times, most recently in 1941 after Japan attacked the naval base at Pearl Harbor in Hawaii.) President Donald Trump has said past surges of migrants from Venezuela and Mexico are like invasions. At a House hearing earlier this month, Secretary Noem said an influx of migrants might justify suspending their legal rights. That would force a critical test that most experts see as unlikely to succeed. Justice Antonin Scalia, a conservative on the Supreme Court, wrote in a 2004 ruling that suspending habeas corpus is a question solely for Congress. Amanda Tyler, a constitutional law professor in Berkeley, Calif., called habeas corpus "one of the single most foundational aspects of American law and the American constitution. . . . It's hard to imagine what could be more central to the role of courts in our constitutional structure."

Constitution says: habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." – Article I, Section 9