U.S. Homeland Security Secretary Kristi Noem said Wednesday that the recent volume of illegal immigration at the southern border could constitute grounds to suspend habeas corpus, reviving constitutional questions as former President Donald Trump considers new legal strategies to expedite deportations.
"I'm not a constitutional lawyer, but I believe it does," Noem said when asked by Rep. Eli Crane (R., Ariz.) whether the current levels of unauthorized border crossings qualify as a "rebellion or invasion" under the Constitution, which permits suspension of habeas corpus only in such scenarios. Her testimony came during a hearing before the House Appropriations Committee on the Trump administration's border security and immigration enforcement agenda.
The statement adds weight to similar remarks last week from Stephen Miller, a top White House aide and architect of Trump's immigration policies. "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," Miller said. "So, it's an option we're actively looking at."
Habeas corpus is a long-standing legal mechanism that allows individuals in custody to challenge their detention in court. Civil liberties experts warned that its suspension would represent a drastic departure from traditional due process protections and would likely face legal challenges. "The emergency itself isn't enough," wrote Georgetown University law professor Steve Vladeck. "The whole point is that the default is for judicial review except when there is a specific national security emergency in which judicial review could itself exacerbate the emergency. The emergency itself isn't enough."
The Trump administration has already invoked the Alien Enemies Act, an 18th-century wartime law, to remove Venezuelan nationals accused of gang affiliations. Some were transferred to a maximum-security facility in El Salvador or held at the Guantanamo Bay naval base. Critics, including Rep. Julie Johnson (D., Texas), denounced the strategy as an unlawful end-run around due process. "You were intending to wrongfully deport people without access to a court hearing, without access to the rule of law," she said.
Despite White House signaling, Noem distanced herself from endorsing the measure. "This is the president's prerogative to pursue, and he has not indicated to me that he will or will not be taking that action," she said.
The idea comes as the Trump administration continues to describe the border situation as a national emergency. In contrast, immigration enforcement data shows a sharp decline in migrant crossings since Trump returned to office in January. U.S. Border Patrol reported 8,400 apprehensions in April - a dramatic drop from the 250,000 recorded in December 2023 under President Biden.
The administration's posture has already drawn legal rebuke. In April, the Supreme Court blocked enforcement of certain removals under the Alien Enemies Act, affirming migrants' rights to contest their deportation.
