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At a Senate Homeland Security and Government Affairs Committee hearing yesterday, Democratic Sen. Maggie Hassan of New Hampshire asked Homeland Security Secretary Kristi Noem questions about habeas corpus petitions — a legal procedure by which an individual or lawyer can challenge the legality of their arrest or detention through a request to a court or judge.
Unfortunately for Noem, most of her answers were wrong.
Sen. Maggie Hassan (D-N.H.): “So, Secretary Noem, what is habeas corpus?”
Noem: “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 …”
Hassan: “Excuse me, that’s incorrect. Habeas corpus is the legal principle that requires that the government provide a public reason for detaining and imprisoning people. […] Habeas corpus is the foundational right that separates free societies like America from police states like North Korea.”
Noem went on to say “the president of the United States has the authority under the Constitution to decide if [the use of habeas corpus] should be suspended or not.”
Also wrong. Any suspension of habeas corpus requires an act of Congress, according to Article 1 of the U.S. Constitution.
The question over the use of habeas corpus is not without precedent. It has been at the center of the fight for the rights of, and protection for, Venezuelan migrants, about 240 of whom the U.S. government sent to the Terrorism Confinement Center (CECOT) in El Salvador. For many of the Venezuelan men flown to El Salvador’s maximum security prison, sent by the administration after it invoked the Alien Enemies Act of 1798, they never knew the evidence against them or that they were being removed to that country, the CATO Institute detailed in a report published on Monday.
The report also states that while the Trump administration calls the Venezuelan immigrants all “illegal aliens,” of 90 cases where the method of crossing into the U.S. is known, 50 men reported that they came legally to the U.S., with advanced U.S. government permission, at an official border crossing point.
Not surprisingly, a habeas corpus petition has been the most important defense that the attorneys of people facing deportation proceedings have been using to fight for them. Yesterday’s Senate hearing comes after Stephen Miller, President Trump’s top policy adviser, said on May 9 the White House is exploring the option of suspending habeas corpus.
Were the Trump administration to succeed in suspending the habeas corpus petition, it would greatly affect legal, undocumented, and limbo-status immigrants. That includes the 350,000 Venezuelans whom the Supreme Court this week gave the green light for the Trump administration to end Temporary Protected Status for. Suspending habeas corpus would mean they will have less opportunity to challenge their deportation.
Back in April, the Supreme Court ruled that deportations under the Alien Enemies Act can only proceed if individuals have time and opportunity to challenge them in court — usually through habeas corpus petitions. As Katherine Yon Ebright, a counsel in the Brennan Center for Justice’s liberty and national security program, told Documented at the time, the court’s ruling essentially said that the Trump administration cannot undermine people’s right to file habeas claims once they are notified that they are going to be deported under the Alien Enemies Act.
Hassan completed her line of questioning on habeas corpus during the hearing — which was actually intended for the Department of Homeland Security’s budget for fiscal year 2026 — by saying to Noem: “if the president tries to suspend habeas corpus and a federal court reverses the president’s order, will you comply with the court order and uphold habeas corpus or will you follow the president’s directive?”
Noem: “We are following all federal court orders and complying with that, as is the president, in every decision I make as well.”
Hassan: “That’s obviously not true for anybody who reads the news.”
Shortly after Trump invoked the Alien Enemies Act on March 15, a federal judge blocked the Trump administration from using the Alien Enemies Act of 1798 to carry out mass deportations, asking that planes flying immigrants to El Salvador stay grounded, and any plane en route with deportees turn around. The Trump administration did not comply. Noem and her team have also not complied with a federal order to return Kilmar Armando Abrego Garcia, a 29-year-old who was deported in error.
“It is critically important that even if the president tries to suspend the right of people to know why they have been detained or imprisoned, if a federal court reverses that order, that you will follow that order,” Hassan said to Noem, adding that the people who were deported by mistake who didn’t get due process be returned in compliance with court orders.
