For every prospective law student nervous about striding into a first-year lecture next Fall and embarrassing yourself under the professor’s withering interrogation, trust that it won’t be nearly as bad as what just happened on Capitol Hill.
DHS Secretary Kristi Noem appeared before the Senate Homeland Security committee amidst a looming constitutional crisis. To set the stage, after a string of courtroom losses — all the way to the Supreme Court — over DHS’s preferred strategy of “grabbing random immigrants off the street and throwing them into El Salvadoran prison camp,” White House Deputy Chief of Staff and white nationalism aficionado Stephen Miller mused to the press that the White House was considering suspending habeas corpus.
While legislators want to get into the particulars and flesh out the scope of this dubious and complex constitutional threat, Senator Maggie Hassan decided to take us back to first principles and just ask Noem: “What is habeas corpus?”
Friends, if you thought Noem’s testimony last week sucked, she’s politely asking you to hold her beer.
“Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country, and to suspend their right to advancement…” Noem said before Hassan breaks the cardinal rule of 1L lectures and lets the flailing student off the hook.
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Not that Noem gracefully accepted Hassan’s attempt to save the Secretary from herself. She tried to keep asserting her nonsensical Balderdash answer of a definition — “President Lincoln used it!” — while Hassan calmly explained “that’s incorrect.”
Because Maggie Hassan has a law degree, unlike Noem or Miller. Perhaps it’s a problem that the most immediately pressing question of constitutional law is being managed by a pair of non-lawyers. This is an apropos moment to mention that rumors abound that Miller is the de facto head of the Department of Justice right now. It’s just a thousand monkeys at 1,000 typewriters over there trying to put together constitutional doctrine. Normally, Senators grilling witnesses on remedial points of law is a stupid waste of time, but this isn’t some esoteric point of law… it’s the administration’s public argument!
Confronted with the ultimate softball, Noem blathers like a first-year law student showing up to class hungover without having done the reading… from her middle school social studies class. Because that’s roughly when a student should learn that habeas corpus is just the procedure for a prisoner to get in front of a judge and make the government defend the legality of the detention.
Or as the Senator explains:
Habeas corpus is the legal principle that requires that the government provide a public reason for detaining and imprisoning people. If not for that protection the government could simply arrest people including American citizens and hold them indefinitely for no reason habeas corpus is the foundational right that separates free societies like America from police states like North Korea.
Far from “a right that the president has to be able to remove people from this country,” habeas corpus is the right the people being rounded up have to appear before a judge and challenge the idea that they can be sold to an El Salvadoran gulag on the basis of tattoos and a Bulls hat without a hearing.
Which is why Miller’s argument is that Trump can get rid of habeas corpus. Somehow Noem, the administration’s highest ranking official on this argument, managed to get the whole argument backward.
Noem tried to right the ship later. And yet…
I support habeas corpus I also recognize that the president of the United States has the authority under the Constitution to decide if it should be suspended or not.
She had a second shot and still missed. Apparently understanding the Constitution presents a harder target than one of her puppies.
Noem’s drivel still fails to hold up if it’s only changed to read “suspending habeas corpus is a constitutional right that the president has…” either. The Constitution mentions habeas corpus just once, noting:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
The Trump argument is that Venezuela has invaded the United States because some immigrants from the country might be gang members. We stress “might be” because the administration has no evidence and has taken the bizarro official position that the inability to provide any evidence is better than evidence because it proves that the gang is good at hiding.
But, as any of you who’ve passed Con Law will note, even if this amounted to an invasion, the language is found in Article I and therefore the correct tweaking of Noem’s answer would be “suspending habeas corpus is a constitutional right that the president Congress has….” This is why she interjects “President Lincoln used it!” because some hapless aide must have armed her with this half-remembered fact assuming she’d be asked why the executive can unilaterally perform a legislative function as opposed to “hey, dummy, do you even know what habeas corpus means?”
Lincoln did attempt to suspend habeas corpus during the Civil War, but Congress raised objections to the power grab and Lincoln walked back his assertion, instead asking Congress to vote to authorize the suspension as the Constitution contemplates. They did. Hassan, of course, points all this out.
If there’s a solid practice point to take away from this examination, it’s that you should never assume a premise. Noem clearly had some talking points swirling in her head that might’ve come across as remotely coherent if the first question asked about Noem’s basis for asserting an executive right to suspend habeas corpus. Witnesses can be prepped to get around a lot of ignorance.
But going back to the basics can blow up a lot of meticulous preparation.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.