An astonishing display of ignorance by a US cabinet member played out in a hearing room on Capitol Hill in Washington on May 20. The ignoramus in question was Kristi Noem, Secretary of Homeland Security, testifying before the Senate Committee on ... homeland security.
Sen. Maggie Hassan of New Hampshire asked Noem what the phrase "habeas corpus" means.
Digression here. As a matter of simple translation, that Latin phrase means in English "you have the body". The phrase is significant in Anglo-American jurisprudence because we are to think of it as directed to a warden or jailor, "You have the body of John Doe in your custody, now you are required to come to court and explain why you are holding that body and whether you should be allowed to continue to do so."
In other words, "habeas corpus" is the name for a venerable proceeding that limits unlawful detention by requiring such public explanations. Digression complete.
Secretary Noem's answer to the simple question screwed the pooch. She said, and I quote, "Habeas corpus is a constitutional right that the president has to be able to remove people from this country..." -- she got a bit further than that before being interrupted.
Soooo much wrong with that. Yes, though, there is a power (not a "right" but a power) created in the US constitutional system to allow for the suspension of habeas corpus. It is NOT the President's power. It is clearly identified as Congress' power. It is part of COTUS Article I, which identifies the two houses of Congress and their legislative power. It is NOT part of Article II, the executive branch's equivalent.
But more important, Noem thinks the suspension of habeas corpus is all that the phrase "habeas corpus" actually MEANS. It is rather as one were to ask her what the phrase "Hail to the Chief" means and she were to respond, "It is the right of the Congress to hold proceedings without interruption by a military band."
Uh ... no.
God has in many ways blessed America but she is in the hands of the devil today.
I wouldn't say that the power to suspend habeas corpus "is clearly identified as Congress' power." The Constitution (Art. I, sec. 9, cl. 2) does not state which branch has the power, and, as far as I know, no court has ruled on the question. The consensus is that Congress has the power because Article I governs the powers of Congress. But not every provision of Article I speaks to the powers of Congress.
ReplyDeleteDuring the Civil War, while Congress was not in session, Lincoln suspended habeas corpus. Chief Justice Roger Taney -- not speaking for the Court -- said in Ex parte Merryman, that only Congress had the power, and Lincoln ignored him. Subsequently, in his July 4, 1861, Special Message to Congress, Lincoln said, "[T]he Constitution is silent as to which [branch], or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion." Lincoln then noted that Congress might enact legislation on the subject. It did so, retroactively approving of Lincoln's suspension of habeas corpus. With modern transportation, it seems unlikely today that the assembly of Congress could be prevented.
In the July 4, 1861, message to Congress, Lincoln also said that, if his suspending habeas corpus had violated the Constitution, it was necessary, because, "are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"
This, in my opinion, illustrates the pedestrianism of the current administration. Appointees are prepared to go anywhere their boss dictates. In other words, wing it my way---we will see if spaghetti sticks.
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