President Donald Trump's Homeland Security secretary's idea of the government's power to suspend habeas corpus has been discredited, CNN fact-checker Daniel Dale told anchors on Tuesday — by a Supreme Court justice Trump himself appointed.
Noem was grilled earlier in the day by senators over the issue of habeas, or the right of a prisoner — migrants singled out for deportation, in this case — to ask a judge to review whether their detention is lawful.
"I believe that if any president that was able to do that [suspend habeas] in the past, it should be afforded to our current day president," Noem said. "This president has never said he's going to do this ... but I do think the Constitution allows them the right to consider it."
But Sen. Andy Kim (D-NJ) had a swift response. "Do you know what section of the Constitution, the suspension clause of habeas corpus? Article I. Do you know which branch of government Article I outlines the tasks and the responsibilities for? Congress."
Kim's interpretation, while not universal, is broadly favored, Dale noted.
"So that's correct," he said. "This power to suspend the writ of habeas corpus is in Article I of the Constitution, which outlines and provides limitations on the powers of Congress, not the president. Now, the clause doesn't specifically say that it is Congress or the president that has the power. It kind of leaves this undefined."
However, he continued, "It's not just most legal scholars who say that it is Congress who has the power. A certain judge named Amy Coney Barrett, who, of course, went on to be appointed to the Supreme Court by President Trump, wrote in an article in the National Constitution Center website. She said the clause does not specify which branch of government has the authority to suspend the privilege of the writ, but 'most agree that only Congress can do it.' So this is a pretty widespread consensus."
"Now, I think it's also worth noting the actual text of this so-called suspension clause," Dale added. "It says 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.' So one, it requires rebellion or invasion, very much unclear to be generous ... and number two, it says even in those cases, public safety needs to require it. So does it currently require it? When the president is boasting that the border is basically closed and no one is getting in? That's a pretty high hurdle to clear in the courts."
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