AILSA CHANG, HOST:
The secretary of Homeland Security, Kristi Noem, got a pop quiz at a Senate hearing this week. The question came from Democratic Senator Maggie Hassan of New Hampshire.
(SOUNDBITE OF ARCHIVED RECORDING)
MAGGIE HASSAN: Secretary Noem, what is habeas corpus?
KRISTI NOEM: Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country...
HASSAN: No, let...
NOEM: ...To suspend their right...
HASSAN: ...No...
NOEM: ...To...
HASSAN: Let me stop you, Ma'am.
NOEM: ...That's to suspend their right...
HASSAN: Habeas corpus - excuse me - that's incorrect.
CHANG: And we will get to the actual correct definition of habeas corpus in a moment. But the reason that this bit of Latin is under discussion now is because the Trump administration says it is considering suspending habeas corpus. This core constitutional protection has been an obstacle to the president's mass deportation plan. Amanda Tyler is a law professor at the University of California Berkeley, and she joins us now to talk about Trump's proposal. Welcome.
AMANDA TYLER: Thanks for having me.
CHANG: Thanks for being with us. So I just want to start with the very basics here. Under the U.S. Constitution, what is habeas corpus, and what does it protect against?
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 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.
CHANG: Right. And in very plain terms, why should the average American care very much about habeas corpus?
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.
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?
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.
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?
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 have 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.
CHANG: OK. 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?
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.
CHANG: Congress.
TYLER: Right. That is the article that governs how Congress - its powers, how it's assembled, etc.
CHANG: So is there an example in U.S. history where a president tried to unilaterally suspend habeas corpus?
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.
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?
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 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.
CHANG: Amanda Tyler is a professor of law at the University of California Berkeley, and the author of "Habeas Corpus In War Time: From The Tower Of London To Guantanamo Bay." Thank you very much for speaking with us.
TYLER: Thank you. Transcript provided by NPR, Copyright NPR.
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