Sen. Maggie Hassan (D-N.H.) tussled with Homeland Security Secretary Kristi Noem at a committee hearing Tuesday over habeas corpus, which the administration is considering suspending as it increasingly comes into focus in the legal fights over President Trump’s immigration agenda.  

“What is habeas corpus?” Hassan asked during the hearing before the Senate Committee on Homeland Security and Governmental Affairs.
 
“Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country, to suspend their right to” Noem responded. 

Hassan then interjected, “Let me stop you, ma’am. Habeas corpus, excuse me, that’s incorrect.” 

Habeas corpus requires the government to bring someone they are detaining before a court and justify the legality of their detention.

It has become a key legal tool for migrants to contest the administration’s immigration crackdown. Among others, it has been used by Venezuelans to challenge the Trump administration’s use of the 1798 Alien Enemies Act to swiftly deport them to a Salvdoran megaprison and foreign students to contest their immigration detention over participation in pro-Palestinian activism.

“If not for that protection, the government could simply arrest people, including American citizens, and hold them indefinitely for no reason,” Hassan said. “Habeas corpus is the foundational right that separates free societies like America from police states like North Korea.” 

The New Hampshire Democrat then asked Noem at the hearing if she supports habeas corpus. 

“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,” Noem responded. 

Her comments echo those of White House deputy chief of staff Stephen Miller, who suggested earlier this month that the president may try to suspend habeas corpus to carry out mass deportations without bringing individuals for court hearings. 

The Constitution provides that “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.”  

Noem last week indicated she believed current immigration conditions could warrant a suspension. Any move by the White House to unilaterally revoke the writ by declaring an “invasion” at the southern border is all but certain to spark lawsuits. 

The restrictions were laid out in Article I of the Constitution, which defines the legislature. But the specific phrasing does not explicitly tie the suspension power to Congress, leaving ambiguity that the administration believes also vests Trump with the authority.