Kristi Noem Should Probably Know What Habeas Corpus Is

Several top members of the Trump administration have been evading constraints on their lawless actions by playing a clever game of feigned ignorance as to the plain requirements of the Constitution and a series of adverse court rulings.

Then there’s Homeland Security Secretary Kristi Noem, whose ignorance appears to be utterly genuine.

Appearing before a Senate hearing this morning, Noem was asked by Senator Maggie Hassan, “What is habeas corpus?” Noem, whose hearing prep clearly did not anticipate any questions with Latin terms in them, replied, “Habeas corpus is a constitutional right that the president has to be able to remove people from this country, and suspend their right to—”

At this point, Hassan interjected to explain that habeas corpus is, in fact, “the legal principle that requires that the government provide a public reason for detaining and imprisoning people.” In other words, it’s the opposite of what Noem said. It’s not a right the president possesses, but a right the people possess against the president.

Habeas is an extremely basic right, for the obvious reason that, if the government can simply throw anybody in jail without justifying their imprisonment in court, its power is absolute. It dates back to the Magna Carta, and is one of the few rights the Founders included in the original Constitution, without waiting for the addition of the Bill of Rights. Noem—the head of a department with a budget exceeding $100 billion a year, more than a quarter-million employees, and vast domestic enforcement powers that critics warned upon its creation had dystopian police-state potential—would ideally be familiar with the concept.

The second Trump era has produced two broad castes of post-liberal spokespeople. The first category is the lawyers and other theorists who, in the aftermath of Donald Trump’s flailing first term, set out to reimagine a second Trump presidency that would ruthlessly deploy the power of the state to terrorize the opposition. This category is represented by figures such as Office of Management and Budget Director Russell Vought and Deputy Chief of Staff Stephen Miller.

Read: The visionary of Trump 2.0

Earlier this month, Miller appeared outside the White House and replied to a question about habeas corpus, offered up by a reporter for the far-right site Gateway Pundit, with a confident-sounding explanation: “Well, the Constitution is clear, and that of course is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion.”

The administration has sought to leverage its wartime powers into the kind of limitless authority that the Founders directly closed off. Miller’s logic is that the presence of foreign-born gang members amounts to an “invasion,” thus permitting the president to employ emergency wartime authority, which in Miller’s account entails suspending habeas corpus.

Miller’s reasoning contains obvious factual and legal flaws. The presence of foreign gang members is hardly tantamount to an invasion, and the Constitution does not actually give presidents the unilateral power to suspend habeas. Abraham Lincoln famously suspended the right during the Civil War, but this is widely held to have been a constitutional violation, not proof of concept. (“Scholars and courts have overwhelmingly endorsed the position that, Lincoln’s unilateral suspensions of the writ notwithstanding, the Constitution gives Congress the exclusive authority to decide when the predicates specified by the Suspension Clause are satisfied,” Amy Coney Barrett wrote in 2014.) If the president could suspend habeas corpus simply on account of foreign-born people engaging in criminal activity, a condition that has obtained continuously throughout American history, then the people would functionally have no rights at all.

Noem did not display a strong-enough grasp of Miller’s quasi-legal rationale to repeat it in her testimony. She appears to belong to the smaller second category of Trumpian post-liberals: those who believe that Trump axiomatically possesses unlimited rights.

That category includes Trump himself. The president has frequently likened his own power to that of a king. He has tweeted, “He who saves his Country does not violate any Law,” and, when asked if he needs to follow the Constitution, replied, “I don’t know.” While Trump has clearly been exposed to legal justifications for expanding his power, he has never been able to repeat them coherently. His best effort was perhaps the moment during his first term when he said, “I have an Article II, where I have to the right to do whatever I want as president.” This was close in the sense that Article II indeed enumerates the president’s powers. It was off base in the sense that those powers are, well, enumerated.

Noem appears to subscribe to Trump’s reading of the Constitution. A lack of familiarity with the Miller-style pseudo-legal reasoning has not prevented her from executing the administration’s agenda. She has swept up immigrants, shipped them off to an El Salvadoran megaprison, and posed menacingly for photos in front of their cell. That dozens of them never even violated U.S. immigration law, according to the Cato Institute, is a mere detail.

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Upon having habeas defined for her by Hassan, Noem recovered enough to declare, “I support habeas corpus,” as if it were a bill before Congress or an aspirational slogan. Then she immediately contradicted herself by adding, “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.”

If the president had the authority to suspend the right of habeas corpus, then it wouldn’t be a right. That’s how rights work. Generations of Americans feared that liberty might perish under the thumb of ruthless leaders who ignored or undermined constitutional rights. There turns out to be an equal threat from leaders who simply don’t understand them.