Homeland Security Secretary Kristi Noem on Tuesday incorrectly explained what “habeas corpus” is, saying that it means the Commander in Chief has a “constitutional right” to deport people.

She made the remark during a Senate hearing on Tuesday, when Democratic Sen. Maggie Hassan of New Hampshire asked Noem to define habeas corpus.

“Well, habeas corpus is a constitutional right that the President has to be able to remove people from this country,” Noem said.

“That’s incorrect,” Hassan replied. “Habeas corpus is the foundational right that separates free societies like America from police states like North Korea.”

The exchange comes at a fraught time for the Trump Administration, as many deportation cases make their way through the courts. Several of these pending cases are based on habeas corpus, including the deportation of Venezuelan migrants alleged by the Trump Administration to be a part of the Tren de Aragua gang.

Another high-profile immigration case centers on Kilmar Abrego Garcia. The Maryland man was deported to El Salvador by the Immigration and Customs Enforcement (ICE) in March, in what was initially called an administrative error. Abrego Garcia entered the U.S. illegally years ago, but in 2019 a judge granted him "withholding of removal" status, after determining that his fears of persecution if he were returned to El Salvador were credible. The Supreme Court ordered the federal government to “facilitate” Abrego Garcia's return to the United States, but it has yet to do so.
The literal meaning of habeas corpus is “you should have the body,” but as a legal principle, it gives a person the ability to challenge a detention in court.

“Federal habeas corpus is a procedure under which a federal court may review the legality of an individual's incarceration,” per Congress. “It is most often the stage of the criminal appellate process that follows direct appeal and any available state collateral review.”

This right also extends to noncitizens held within the United States, and in the case of those migrants who have been detained by the federal government, pending removal from the country as a part of Trump’s mass deportation plans, habeas corpus can be used to challenge.

In Article I of the Constitution, it is stated that habeas corpus can be suspended only “in Cases of Rebellion or Invasion [when] the public Safety may require it.” This is described, though, under the powers of Congress, not the Executive Branch.The history of habeas corpus dates back centuries to English law and is seen as a protection against arbitrary detentions by local and national governments.

“The reason that habeas corpus has been designed to protect everybody is because over the centuries, people have understood that the people in power can come for you next,” says Eric M. Freedman, a professor of law at Hofstra University. “You can be in power today, and you can be an out-group tomorrow. And so the whole concept is to protect whoever is temporarily unpopular with the ruling government.”