Can Trump suspend habeas corpus?

Summary

Consider This from NPR: Can Trump Suspend Habeas Corpus?

Release Date: May 23, 2025
Host: Ailsa Chang
Guest: Amanda Tyler, Professor of Law at the University of California, Berkeley

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1. Introduction to the Topic

In this compelling episode of NPR's Consider This, host Ailsa Chang delves into a pressing constitutional debate: the potential suspension of habeas corpus by former President Donald Trump. As the nation grapples with questions surrounding executive power and individual liberties, this episode unpacks the legal, historical, and political dimensions of this critical issue.

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2. The Senate Hearing: Maggie Hassan vs. Secretary Kristi Noem [00:00 - 01:47]

The episode opens with a riveting Senate hearing where Democratic Senator Maggie Hassan of New Hampshire challenges Secretary of Homeland Security, Kristi Noem, on her understanding of habeas corpus.

• Maggie Hassan [00:24]: "Secretary Noem, what is habeas corpus? Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country. Let me, let me stop, ma' am. Habeas corpus. Excuse me, that's, that's incorrect."

This exchange highlights a fundamental misunderstanding, as Chang clarifies:

• Ailsa Chang [00:40]: "It is indeed incorrect... habeas corpus is the legal principle enshrined in the Constitution that protects people from illegal detention."

The discussion underscores the current controversy, where the Trump administration is reportedly considering suspending habeas corpus as part of its immigration policies.

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3. The Trump Administration's Stance on Suspending Habeas Corpus [01:05 - 01:47]

Deputy White House Chief of Staff Stephen Miller reveals the administration's intentions:

• Stephen Miller [01:05]: "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. So I would say that's an option we're actively looking at."

Miller suggests that suspending habeas corpus could circumvent judicial obstacles faced by President Trump's mass deportation efforts.

• Stephen Miller [01:41]: "Look, a lot of it depends on whether the courts do the right thing or not."

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4. Expert Insight: Amanda Tyler on Habeas Corpus [03:03 - 09:15]

To provide a deeper understanding, Ailsa Chang interviews Amanda Tyler, a renowned legal scholar and author of Habeas Corpus in Wartime from the Tower of London to Guantanamo Bay.

a. Definition and Constitutional Basis [03:30 - 04:10]

• Amanda Tyler [03:30]: "Habeas corpus is to undergo and receive the body. It means that courts have the right and obligation to examine the legal justification for someone's detention by the government."

Tyler emphasizes that habeas corpus is a centuries-old principle vital for safeguarding personal liberty against unlawful detention.

• Amanda Tyler [04:17]: "It goes to our very personal liberty, our freedom... we could go to a court if we're being deprived of our liberty unlawfully and win redress, win release."

b. Historical Context of Suspension [04:45 - 06:36]

The conversation shifts to the rarity and gravity of suspending habeas corpus in American history.

• Amanda Tyler [04:57]: "We've had suspensions only extremely rarely in American history in situations like the Civil War and the bombing of Pearl Harbor."

She highlights that the Constitution permits suspension only during rebellion or invasion, contingent on public safety.

• Amanda Tyler [05:33]: "Late Justice Souter once said suspension is just about the most stupendously significant thing the government can do."

c. Legal Implications of Trump's Potential Suspension [06:36 - 09:15]

A critical examination follows on whether the President can unilaterally suspend habeas corpus.

• Amanda Tyler [06:36]: "The President does not have the power to suspend habeas corpus ahead of Congress."

Referencing Abraham Lincoln, Tyler explains that any presidential attempt to suspend habeas corpus has historically required congressional support to be legitimate.

• Amanda Tyler [07:52]: "Lincoln... went eventually to Congress... he specifically referenced the legislation that Congress had passed as justifying it."

Regarding the present Supreme Court's stance:

• Amanda Tyler [08:13]: "There’s overwhelming evidence that the president doesn’t have this power. The case for the administration's position is very weak here."

She underscores that the current judiciary, anchored by originalist justices, is likely to reject any unilateral suspension attempts by the President.

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5. The Supreme Court's Potential Response [08:13 - 09:15]

Amanda Tyler discusses the likelihood of the Supreme Court challenging Trump's actions:

• Amanda Tyler [08:13]: "This court is populated with justices who care deeply about history... there's overwhelming evidence that the president doesn't have this power."

She anticipates that courts will not only refuse the suspension but also scrutinize the justification of invasion or rebellion invoked by the administration.

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6. Conclusion and Implications for American Liberty [09:15 - End]

The episode concludes by reflecting on the profound implications that suspending habeas corpus would have on American democracy and individual freedoms.

• Ailsa Chang [09:15]: Reiterates Amanda Tyler's expertise and the critical nature of the discussion.

As the conversation wraps, listeners are left to contemplate the delicate balance between national security and the preservation of constitutional rights.

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Notable Quotes:

• Maggie Hassan [00:24]: "Habeas corpus is a constitutional right that the president has to be able to remove people from this country. Let me, let me stop, ma' am. Habeas corpus. Excuse me, that's, that's incorrect."

• Stephen Miller [01:05]: "The privilege of the writ of habeas corpus can be suspended in a time of invasion."

• Amanda Tyler [04:17]: "It goes to our very personal liberty, our freedom..."

• Amanda Tyler [08:13]: "There’s overwhelming evidence that the president doesn’t have this power."

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Final Thoughts

This episode of Consider This masterfully navigates a complex legal topic, making it accessible and engaging for listeners. By combining real-time political developments with expert analysis, NPR provides a nuanced exploration of habeas corpus and its pivotal role in maintaining the rule of law in the United States.

Transcript

[Ailsa Chang]

Among the responsibilities of the Department of Homeland Security is running the civics tests that immigrants need to pass to become U.S. citizens. And this week, the head of that department, Secretary Kristi Noem, got her own pop quiz on civics.

[Maggie Hassan]

Good morning. Good morning, Madam Secretary.

[Ailsa Chang]

This was at a Senate hearing, and this question came from Democratic Senator Maggie Hassan of New Hampshire.

[Maggie Hassan]

So, Secretary Noem, what is habeas corpus? Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country. Let me, let me stop, ma' am. Habeas corpus. Excuse me, that's, that's incorrect.

[Ailsa Chang]

It is indeed incorrect. As Hassan goes on to lay out, habeas corpus is the legal principle enshrined in the Constitution that protects people from illegal detention. The reason that this bit of Latin is currently under discussion is because the Trump administration says it's considering suspending habeas corpus. Deputy White House Chief of Staff Stephen Miller said this to reporters earlier this month.

[Stephen Miller]

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. So I would say that's an option we're actively looking at.

[Ailsa Chang]

Habeas corpus has been at the center of the legal fights over President Trump's mass deportation plan. Some of his actions have been temporarily blocked by courts over concerns that immigrants did have enough opportunity to challenge their deportation through habeas corpus petitions. And Miller seemed to suggest that suspending habeas corpus was a way to get around the courts.

[Stephen Miller]

Look, a lot of it depends on whether the courts do the right thing or not.

[Ailsa Chang]

Consider this. Habeas corpus is a principle that's hundreds of years older than America itself. What would it mean if the president suspended it? And could he, under the Constitution? From npr, I'm Ailsa Chang.

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[Ailsa Chang]

It's Consider this from npr. Amanda Tyler wrote the book on habeas corpus. Actually two books and a bunch of law review articles. She's a professor of law at the University of California, Berkeley. And we reached out to her to talk through habeas corpus and President Trump's plans. So I just want to start with the very basics here. Under the US Constitution, what is habeas corpus and what does it protect against?

[Amanda Tyler]

Well, literally, habeas corpus is to undergo and receive the body. And what does that mean? It means that in Anglo American legal tradition, courts have the right and indeed, the obligation, when asked to look into the legal justification for someone being arrested and detained by the government. And, and so for centuries, that is the role that courts have played. They have worked to ensure that the executive, whether it's the king of England or the president of the United States, is not detaining somebody illegally.

[Ailsa Chang]

Right. And in very plain terms, why should the average American care very much about habeas corpus?

[Amanda Tyler]

It would be hard to overstate the importance of habeas corpus in our constitutional tradition because it goes to our very personal liberty, our freedom, and we have always had that security, except for in the very rare situations of suspension that we could go to a court if we're being deprived of our liberty unlawfully and win redress, win release.

[Ailsa Chang]

Well, the White House deputy chief of staff, Stephen Miller, told reporters that the Trump administration was considering suspending habeas corpus. How big of a deal is it?

[Amanda Tyler]

It is such a big deal. We've had suspensions only extremely rarely in American history in situations like the Civil War and the bombing of Pearl harbor, and specifically what the Constitution requires is a rebellion or invasion and for the public safety to warrant suspension. And the effect of a suspension is effectively to shutter the courts. And that's why in a case that was argued to the Supreme Court after 9, 11, late Justice Souter once said suspension is just about the most stupendously significant thing the government can do.

[Ailsa Chang]

Can you explain why the phrase habeas corpus is even coming up in the courts right now with respect to President Trump's immigration actions?

[Amanda Tyler]

The reason it's coming up and become so prominent is because all of the challenges to the president's actions in this immigration context and all of the removals that he's trying to undertake, particularly under his proclamation with respect to the Alien Enemies act, they're all coming through habeas petitions brought by individuals who've been arrested and are being detained and are at risk of being removed from the country expeditiously in large measure, I should say, because the Supreme Court has, in an early emergency order a few weeks ago, said this is how they should proceed.

[Ailsa Chang]

Okay, you mentioned that there are some limited circumstances under which habeas corpus could be constitutionally suspended. Can you first talk about whether the President of the United States can unilaterally suspend habeas corpus?

[Amanda Tyler]

This is a really important question, and the answer is a categorical no. The President does not have the power to suspend habeas ahead of Congress. The founding generation, first and foremost, put the suspension clause in Article 1 of the Constitution, which is the legislative article.

[Ailsa Chang]

Congress.

[Amanda Tyler]

Right. That is the article that governs how Congress, its powers, how it's assembled, et cetera.

[Ailsa Chang]

So is there an example in US History where a president tried to unilaterally suspend habeas corpus?

[Amanda Tyler]

Yes. I mean, the classic example here is Abraham Lincoln. And a lot of people point to his example as supporting the notion that the president has this power. But the story is a lot more complex because as he was proclaiming suspensions on his own, courts were questioning his actions right and left. And so the Lincoln administration actually went eventually to Congress and said, we really need legal cover. We need you to pass suspension legislation. And after Congress did so, he not only issued a new suspension, he specifically referenced the legislation that Congress had passed as justifying it. And in so doing, I think Lincoln all but conceded that he had been acting unlawfully up until that point.

[Ailsa Chang]

Well, this current Supreme Court has been willing or seems to be willing to grant the President very broad powers. How do you see Stephen Miller's argument, the Trump administration's argument, going before the current justices? If President Trump does attempt to suspend habeas corpus with respect to his immigration actions?

[Amanda Tyler]

There are so many issues that will come up if the president were to do this. There's the first question of whether the president has the power to do this. And this is a court that is populated with a number of justices who care very deeply about history, and many of whom are originalists. And so they're going to care a lot about what the founding generation thought. And there's just really overwhelming evidence that the president doesn't have this power. So I think that would be probably the start and end. But if the court were to go further, it would also look at whether there is potentially an invasion or rebellion that justifies the suspension. And the court may have to do that in any event, because by. Invoking the Alien Enemies Act, President Trump has declared that there is an invasion, and that's the predicate on for him having exercised that emergency power. And that issue is now percolating in the lower courts. And I think the case for the administration's position is very weak here.

[Ailsa Chang]

Amanda Tyler is a professor of law at the University of California, Berkeley, and the author of Habeas Corpus in Wartime from the Tower of London to Guantanamo Bay. Thank you very much for speaking with us.

[Amanda Tyler]

Thank you.

[Ailsa Chang]

This episode was produced by Connor Donovan. It was edited by Courtney Dorning. Our executive producer is Sammy Yenigun. And we want to take a moment to thank our Consider this Plus listeners who support the work of NPR journalists and help keep public radio strong. Supporters also hear every episode without messages from sponsors. Learn more at plus.NPR.org foreign It's Consider this from NPR. I'm Ailsa Chang.

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