Members of the Trump administration have spoken recently about possibly suspending a foundational principle of the Constitution, habeas corpus, which protects people from unlawful detention.
Kristi Noem, the homeland security secretary, incorrectly described it in a Senate hearing on Tuesday as the president’s “constitutional right” to deport people.
Ms. Noem also said that she thought the president had the authority to suspend habeas corpus, an action that has been weighed by Trump officials, though legal experts say that can only be done by Congress. Here’s how habeas corpus works:
What does habeas corpus do?
Habeas corpus, which is enshrined in the first article of the Constitution, helps ensure that people are not detained without valid legal grounds.
If someone believes a person is being illegally detained, they can ask a judge to issue a “writ” of habeas corpus — basically a court order — demanding that the party detaining the person bring them into court and prove that they have the authority to do so. If the judge finds that they do not, the detainee must be set free.
Amanda Tyler, a constitutional law professor at the University of California, Berkeley, called habeas corpus “one of the single most foundational aspects of American law and the American constitution.”
“What it does is empower courts to protect individual liberty,” Professor Tyler said. “It’s hard to imagine what could be more central to the role of courts in our constitutional structure.”
In Latin, habeas corpus means “that you have the body.”
Where does habeas corpus come from?
Habeas corpus, which is sometimes called the “Great Writ,” dates back to at least 1215, when Magna Carta was issued and guaranteed protection from unlawful imprisonment, said Alison LaCroix, a constitutional law professor at the University of Chicago.
The framers of the Constitution considered habeas corpus a foundational right, Professor LaCroix said. They were people, she said, “who had recently fought a revolution and were thinking that restraining the government from locking people away without any kind of procedure was one of the main problems that they saw with tyrannical government.”
Can the government suspend habeas corpus?
The executive branch, which includes the president and the Justice Department, cannot suspend habeas corpus, only Congress can, Professor Tyler and Professor LaCroix said. According to Article 1 of the Constitution, which spells out the powers of Congress, habeas corpus can be suspended “when in cases of rebellion or invasion the public safety may require it.”
Professor LaCroix said that the executive branch has repeatedly challenged this limit, including in the 2000s in cases involving detainees at Guantánamo Bay.
“The Supreme Court and the federal courts more broadly have rejected that claim, that assertion of executive power, over and over,” Professor LaCroix said. “They haven’t said the person has to be released, but they have said as a minimum of American constitutional principles, we allow individuals in these detention situations to have some sort of judicial hearing.”
Why is the Trump administration considering suspending habeas corpus?
Stephen Miller, the White House deputy chief of staff, said this month that the administration was considering suspending habeas corpus for detained migrants. Mr. Miller argued that illegal immigration is an invasion that meets the criteria for suspending habeas corpus.
Three federal judges have in recent weeks rejected arguments that illegal immigration constitutes an invasion. The Supreme Court has ruled that immigrants can challenge the legality of their deportation only by filing habeas corpus petitions, so it is a crucial right in those cases.
Has habeas corpus been suspended before?
Habeas corpus has been suspended four times at the federal level in the United States, most recently in 1941, in Hawaii, after the attack on Pearl Harbor.
It was also suspended during Reconstruction in an effort to stop violence by the Ku Klux Klan, and in 1905 in the Philippines when it was a U.S. territory and there was a rebellion against the American military.
In 1861, Abraham Lincoln suspended habeas corpus during the Civil War. His move was challenged and did not receive congressional approval until 1863.
Amanda Holpuch covers breaking news and other topics.
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