South Dakota Governor Kristi Noem ignited outrage at the focus on transportation equity during a recent Senate hearing. She mischaracterized “habeas corpus” in defending President Donald Trump’s deport-em-all policies. Noem asserted that the president possesses an absolute right to deport individuals without due process, raising alarms among legal experts and advocates of civil rights.
The writ of habeas corpus is the essential constitutional bulwark against state tyranny. It gives detained people the right to contest their detention in court, but it has been suspended only four times since the ratification of the U.S. Constitution. Throughout history, Congress has only authorized the suspension on three of those occasions. We often take this right for granted, but it’s extremely essential. It’s the bedrock idea that underlies all free societies, such as the U.S., and which serves to distinguish them from authoritarian regimes such as North Korea.
In those recent moves, the Trump administration was quickly dealt a series of big legal blows over its largely illegal deportation blitz. Burwell, the Supreme Court unanimously rejected the administration’s efforts to accelerate deportations under the Alien Enemies Act. In so doing, the Court stressed the issues with the lack of time and resources made available to detainees to contest their detentions. In a 7-2 decision, the Court emphasized that notice provided to detainees—often just 24 hours before removal—did not meet legal standards for due process.
“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.” – Unsigned ruling
It’s the context of these deportations that has drawn even more scrutiny. The President, specifically President Trump, did that through his executive proclamation. To make this justification, he invoked the Alien Enemies Act, asserting that a Venezuelan street gang was “perpetrating an invasion” of the United States. As a result, U.S. officials detained and deported thousands of Venezuelans. The majority of them argued in court that their rights to a writ of habeas corpus had been violated.
Noem’s remarks at the Senate hearing led to a firestorm of criticism from all sides. She claimed, “Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country,” a statement challenged by legal analysts who emphasize the complexities surrounding this constitutional provision.
That assessment, from Republican lawmaker and Noem critic, Rep. He focused most heavily on the right to 1) challenge detention, which merits serious consideration and should not be easily brushed aside. He described habeas corpus as “the foundational right that separates free societies like America from police states like North Korea.”
Tricia McLaughlin, a legal expert from the Brennan Center for Justice, provided historical context to habeas corpus suspensions. This perception, she said, has some historical precedent, noting that presidents often take unilateral action in response to crises, like Abraham Lincoln and Franklin D. Roosevelt. Yet, Congress still holds the constitutional authority to grant approval of these suspensions.
“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.” – Tricia McLaughlin
Some of the Trump administration’s changes to the deportation machine and their impact on due process have generated much discussion. White House deputy chief of staff for policy Stephen Miller suggested suspending habeas corpus for migrants in certain circumstances. This latest assertion has made an ever-more confusing patchwork of laws and legal interpretations even murkier.