When government officials are ignorant about the Constitution

In a constitutional republic, our elected and appointed officials must know and care about the power the Constitution confers—and the limits it imposes.

Homeland Security Secretary Kristi Noem testifies on Congress on May 8. (C-SPAN2 screenshot)

For a constitutional republic to survive, government officials cannot be ignorant about or indifferent to the Constitution itself. They must know and care about the powers the document confers on them and the limits it imposes.

For officials in the Trump administration, such constitutional niceties seem utterly trivial. One after another, they have displayed contempt for the Constitution or shown they know nothing about it.

The attitude of those people exemplifies what in another context political philosopher Hannah Arendt labeled the “banality of evil.” They are just doing their jobs and trying to please their boss.

As Arendt explained, the problem with people like that is “that so many…(are) like (them) and that the many were, and still are, terribly and terrifyingly normal.”

Americans who care about the future of democracy and the rule of law should be outraged by such behavior. They must register their outrage at government officials who swear to uphold the Constitution but put aside their oaths to blindly serve a single person. They should do so in public, visible, and lawful ways and call on Congress to expose bureaucratic lawlessness whenever they can.

One example of the value of such exposure occurred on May 20, when Homeland Security Secretary Kristi Noem appeared before the Senate Homeland Security Committee. During that appearance, the secretary flunked the kind of test that would be required to pass a ninth-grade civics class or become a naturalized citizen.

It unfolded this way:

Asked by New Hampshire Sen. Maggie Hassan to explain habeas corpus, Noem responded, "Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country and suspend their right to ..... "

An impatient Hassan interrupted Noem: "That's incorrect. "

But the secretary continued, revealing more about how little she knows of American history, “President Lincoln used it….”

When Hassan managed to get Noem to stop, the senator told her, "Habeas corpus is the legal principle that requires that the government provide a public reason for detaining and imprisoning people. If not for that protection, the government could simply arrest people, including American citizens, and hold them indefinitely for no reason."

Habeas corpus is, Hassan added, "the foundational right that separates free societies like America from police states like North Korea.”

Having finished reminding the secretary of those facts, Hassan asked: "So, Secretary Noem, do you support the core protection that habeas corpus provides, that the government must provide a public reason in order to detain and imprison someone?"

Noem responded, "I support habeas corpus.” But given what she had just said, it is not clear what she is supporting.

That only became more perplexing when Noem insisted that “the president of the United States has the authority under the Constitution to decide if it should be suspended or not."

Wrong.

The power to suspend the privilege of the writ of habeas corpus clearly belongs to the legislative branch, not the executive. The courts have said this on several occasions, including immediately after what Lincoln did at the start of the Civil War.

As Chief Justice Roger Taney put it then, “The clause in the Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth section of the first article. This article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department.”

Making something so clear that even Noem and other Trump administration officials should understand it, Taney argued: “I can see no ground whatever for supposing that the President in any emergency or in any state of things can authorize the suspension of the privilege of the writ of habeas corpus or arrest a citizen except in aid of the judicial power.”

In a lesser-noted exchange with the secretary on Tuesday, New Jersey Sen. Andy Kim brought Noem back to the Constitution and tested her knowledge again.

He asked her to confirm “that you understand that any suspension of habeas corpus requires an act of Congress.” The secretary repeated but botched what seemed to be her memorized talking point.

“President Lincoln,” she said, “executed habeas corpus in the past with a retroactive action by Congress. I believe that any president that was able to do that in the past it should be afforded to our current-day president.”

Executed? A Freudian slip, perhaps, as if Lincoln killed the writ.

Bizarre. Though maybe her slip suggests that putting an end to the privilege of the writ is very much on the minds of Trump administration officials.

Kim continued his line of questioning by asking another straightforward factual question. “How many times has habeas corpus been suspended in our country?”

“Once that I know of,” replied the person charged with protecting our nation’s security.

Wrong. It has been suspended four times.

And it didn’t get any better for Noem when Kim asked, “Do you know what section of the Constitution the suspension clause of habeas corpus is in?” She answered, “I do not. Nope.”

The senator continued, “Do you know which article it is in?” Noem replied, “I do not, sir.”

My guess is that the secretary probably couldn’t explain the difference between sections and articles in the Constitution. She did, however, know that Article I outlines the powers of Congress.

Some might say that Hassan and Kim were guilty of “gotcha” questioning or that the secretary is a policymaker who doesn’t need to know what habeas corpus is or where the provision allowing suspension of the writ is found in the Constitution.

But I think it would be a mistake to brush off Noem’s performance as insignificant.

After all, the furor about suspending the writ arose when Deputy White House Chief of Staff Stephen Miller raised it earlier this month in the context of the administration’s crackdown on immigration and what the Immigration and Customs Enforcement agency might do. ICE is, as the Federal Register explains, “the principal investigative arm of the U.S. Department of Homeland Security (DHS) and the second largest investigative agency in the federal government.”

And if that were not enough to get the secretary’s attention to the possibility of suspending the writ of habeas corpus, something she contended she has not discussed with either President Donald Trump or Miller, there is the matter of the oath she took when she was sworn in on Jan. 25 by Justice Clarence Thomas at his home.

That oath required her to “solemnly swear (or affirm)” that she would support and defend the Constitution of the United States against all enemies, foreign and domestic. Noem also affirmed that “I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

Noem’s performance on Tuesday was ever that of the loyal bureaucrat seeking to please her boss by steadfastly insisting that he has the authority to do what the Constitution expressly forbids. But it is also strong evidence that she does not intend to “bear true faith and allegiance” to a document whose contents she does not seem to know or whose requirements she does not understand.

That is more bad news for the fate of our constitutional republic.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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