Homeland Security Secretary Kristi Noem said on Wednesday that she supports looking into suspending one of the most fundamental rights in the Constitution — the right to challenge your detention in court.
The right, known as habeas corpus, forces the government to explain why someone is being held. It’s protected in the Constitution and can only be suspended in extreme cases — specifically during “Rebellion or Invasion” when public safety is at risk.
But Noem hinted that the current immigration crisis might qualify.
“I’m not a constitutional lawyer, but I believe it does,” Noem told Rep. Eli Crane (R-Ariz.) during a hearing. Crane claimed that the Biden administration had “allowed an invasion into our country.”
Noem said the final decision isn’t hers to make. “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, referring to Donald Trump.
Noem’s comments came after Trump adviser Stephen Miller said the White House is “actively looking at” suspending the writ. “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,” Miller said. “So, it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”
Under Trump, the government has used the Alien Enemies Act — a law from the 1700s — to deport some migrants, including Venezuelans accused of gang ties, to a dangerous prison in El Salvador. Migrants and detainees, including students like Rümeysa Öztürk and Mahmoud Khalil, have used habeas corpus to fight these detentions.
Experts warn this path is legally shaky.
“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,” wrote Georgetown law professor Steve Vladeck.
He also pointed out a major legal issue with Miller’s claim: “Miller also doesn’t deign to mention that the near-universal consensus is that only Congress can suspend habeas corpus.”
Still, Noem left the door open — and said it’s up to Trump to decide whether that door stays open or slams shut.
Watch the clip below:
Q: "Are you open and supportive of this constitutional option to suspend the writ of habeas corpus?"
Noem: "This is something that's not in my purview to weigh in on. This is the president's prerogative to pursue…He has not indicated he will or will not be taking that action." pic.twitter.com/lZffQ8n4aF
— The Bulwark (@BulwarkOnline) May 14, 2025
