Democratic Senator Maggie Hassan of New Hampshire quickly pushed back and described habeas corpus as “the foundational right that separates free societies like America from police states like North Korea.”
“The writ of habeas corpus is available to anyone who’s been held by the government and who says that they’re being held illegally,” said UC Berkeley’s Chemerinsky, who added that the Constitution only allows one part of government to suspend habeas corpus: Congress — not the president — and only when “cases of rebellion or invasion the public safety may require it.”
The Trump administration, however, insists that there is a historical precedent for the president to freeze habeas corpus: In 1861, Abraham Lincoln suspended habeas corpus without permission from Congress during the Civil War. And although Lincoln argued that this only impacted suspected Confederate spies and sympathizers, the courts soon decided that the president’s actions were unconstitutional.
“Lincoln had no authority to suspend the writ of habeas corpus,” Chemerinsky said. “The fact that this was a constitutional violation back in the mid-19th century certainly doesn’t justify one now in the early 21st century.”
Due process: A final failsafe
In March, Trump signed a proclamation claiming that the gang Tren de Aragua — founded in a Venezuelan prison in 2011 — is cooperating with the regime of Nicolás Maduro to perpetrate “an invasion of and predatory incursion” into the U.S. Any Venezuelan immigrant the administration believes to be a TDA member, according to the proclamation, is “liable to be apprehended, restrained, secured, and removed” from the country.
Behind this aggressive deportation policy is the Alien Enemies Act of 1798 — a law that’s only been invoked before when the U.S. was at war with a foreign nation. On April 7, the Supreme Court ruled that the administration could move forward with its plan as long as suspected gang members were given “reasonable time” to challenge their deportations in court — due process.
But by the time the court announced its ruling, the administration had already deported hundreds of Venezuelan citizens without a hearing. Many of these individuals are now held in prisons in El Salvador, per an agreement between the U.S. and the government of Nayib Bukele.
A recent study from the Cato Institute, a libertarian think tank, found that 50 Venezuelan men deported to El Salvador’s maximum security CECOT prison came to the U.S. legally, with advanced government permission. “Because these men were denied due process, the public had no opportunity to obtain a real accounting of any evidence against them,” the Cato Institute report said.
New evidence also puts into question Trump’s claim that the Venezuelan government is collaborating with TDA. The Freedom of the Press Foundation obtained last month an internal memo from the administration’s own intelligence agencies that states the Maduro regime “probably does not have a policy of cooperating with TDA and is not directing TDA movement” into the U.S.
Government can still make mistakes, Chemerinsky said. “The only way we can check the government is to have a fair process.”
Rewriting — or eliminating completely due process — for one group could make everyone else vulnerable in the future, added Coles. “The guarantees of individual rights are only meaningful if the government doesn’t get to pick and choose who’s got the rights,” he said.
