Article I, Section 9, Clause 2:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

This Clause is the only place in the Constitution in which the Great Writ is mentioned, a strange fact in the context of the regard with which the right was held at the time the Constitution was written1 and stranger in the context of the role the right has come to play in the Supreme Court’s efforts to constitutionalize federal and state criminal procedure.2

Only the Federal Government and not the states, it has been held obliquely, is limited by the Clause.3 The issue that has always excited critical attention is the authority in which the Clause places the power to determine whether the circumstances warrant suspension of the privilege of the Writ.4 The Clause itself does not specify, and although most of the clauses of Section 9 are directed at Congress not all of them are.5 At the Convention, the first proposal of a suspending authority expressly vested “in the legislature” the suspending power,6 but the author of this proposal did not retain this language when the matter was taken up,7 the present language then being adopted.8 Nevertheless, Congress’s power to suspend was assumed in early commentary9 and stated in dictum by the Court.10 President Abraham Lincoln suspended the privilege on his own motion in the early Civil War period,11 but this met with such opposition12 that he sought and received congressional authorization.13 Three other suspensions were subsequently ordered on the basis of more or less express authorizations from Congress.14

When suspension operates, what is suspended? In Ex parte Milligan,15 the Court asserted that the Writ is not suspended but only the privilege, so that the Writ would issue and the issuing court on its return would determine whether the person applying can proceed, thereby passing on the constitutionality of the suspension and whether the petitioner is within the terms of the suspension.

Restrictions on habeas corpus placed in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)16

, §§ 101–08, 110 Stat. 1214, 1217–26, amending, inter alia, 28 U.S.C. §§ 2244, 2253, 2254, 2255, and Fed. R. App. P. 22. and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) have provided occasion for further analysis of the scope of the Suspension Clause. AEDPA’s restrictions on successive petitions from state prisoners are “well within the compass” of an evolving body of principles restraining “abuse of the writ,” and hence do not amount to a suspension of the Writ within the meaning of the Clause.17 Interpreting IIRIRA so as to avoid what it viewed as a serious constitutional problem, the Court in another case held that Congress had not evidenced clear intent to eliminate federal court habeas corpus jurisdiction to determine whether the Attorney General retained discretionary authority to waive deportation for a limited category of resident aliens who had entered guilty pleas before IIRIRA repealed the waiver authority.18 “[At] the absolute minimum,” the Court wrote, “the Suspension Clause protects the writ as it existed in 1789. At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.” 19

Building on its statement concerning the “minimum” reach of the Suspension Clause, the Court, in Department of Homeland Security v. Thuraissigiam, explored what the habeas writ protected, as it existed in 1789.20 Thuraissigiam involved a Suspension Clause challenge to a provision in IIRIRA limiting when an asylum seeker could seek habeas review to challenge a removal decision and stay in the United States.21 Proceeding on the assumption that the Suspension Clause only prohibited limitations on the common-law habeas writ,22 the Court concluded that the Writ at the time of the Founding “simply provided a means of contesting the lawfulness of restraint and securing release.” 23 The asylum seeker in Thuraissigiam did not ask to be released from United States custody, but instead sought vacatur of his removal order and a new opportunity to apply for asylum, which if granted would enable him to remain in the United States.24 The Court concluded that such relief fell outside the scope of the common-law habeas writ.25 As a consequence, the Court held that, at least with respect to the relief sought by the respondent, Congress did not violate the Suspension Clause by limiting habeas relief for asylum seekers in IIRIRA.26

In a 2023 decision, Jones v. Hendrix,27 the Supreme Court held that a prisoner may not file a habeas corpus petition under 28 U.S.C. § 2241, asserting a change in statutory interpretation, to circumvent AEDPA’s restrictions on second or successive 28 U.S.C. § 2255 motions. The Court held that allowing a claim based on a change in statutory interpretation would extend the scope of the Suspension Clause far beyond its scope at the time of the Constitution’s ratification.28

The question remains as to what aspects of habeas are aspects of this broader habeas are protected against suspension. Noting that the statutory writ of habeas corpus has been expanded dramatically since the First Congress, the Court has written that it “assume[s] . . . that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789.” 29 This statement, however, appears to be in tension with the theory of congressionally defined habeas found in Bollman, unless one assumes that a habeas right, once created, cannot be diminished. The Court, however, in reviewing provisions of the Antiterrorism and Effective Death Penalty Act that limited habeas, passed up an opportunity to delineate Congress’s permissive authority over habeas, finding that none of the limitations to the writ in that statute raised questions of constitutional import.30 In Jones, the Court pushed back further, commenting that “the Suspension Clause does not constitutionalize [an] innovation of nearly two centuries later.” 31

In Boumediene v. Bush,32 in which the Court held that Congress’s attempt to eliminate all federal habeas jurisdiction over “enemy combatant” detainees held at Guantanamo Bay33

, § 1005(e)(1) (providing that “no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay).” After the Court decided in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the Detainee Treatment Act did not apply to detainees whose cases were pending at the time of enactment, it was amended by the Military Commissions Act of 2006, Pub. L. No. , to also apply to pending cases where a detainee had been determined to be an enemy combatant. violated the Suspension Clause. Although the Court did not explicitly identify whether the underlying right to habeas that was at issue arose from statute, common law, or the Constitution itself, it did decline to infer “too much” from the lack of historical examples of habeas being extended to enemy aliens held overseas.34 In Boumediene, the Court instead emphasized a “functional” approach that considered the citizenship and status of the detainee, the adequacy of the process through which the status determination was made, the nature of the sites where apprehension and detention took place, and any practical obstacles inherent in resolving the prisoner’s entitlement to the writ.35

In further determining that the procedures afforded to the detainees to challenge their detention in court were not adequate substitutes for habeas, the Court noted the heightened due process concerns when a detention is based principally on Executive Branch proceedings—here, Combatant Status Review Tribunals (CSRTs)—rather than proceedings before a court of law.36

, Title X, Congress granted only a limited appeal right to determination made by the Executive Branch as to “(I) whether the status determination of [a] Combatant Status Review Tribunal . . . was consistent with the standards and procedures specified by the Secretary of Defense . . . and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” § 1005(e)(2)(C). The Court also expressed concern that the detentions had, in some cases, lasted as long as six years without significant judicial oversight.37 The Court further noted the limitations at the CSRT stage on a detainee’s ability to find and present evidence to challenge the government’s case, the unavailability of assistance of counsel, the inability of a detainee to access certain classified government records which could contain critical allegations against him, and the admission of hearsay evidence. While reserving judgment as to whether the CSRT process itself comports with due process, the Court found that the appeals process for these decisions, assigned to the United States Court of Appeals for the District of Columbia, did not contain the means necessary to correct errors occurring in the CSRT process.38

Footnotes

1

R. Walker, The American Reception of the Writ of Liberty (1961).

2

See ArtIII.S1.6.9 Habeas Review.

3

Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917).

4

In form, of course, Clause 2 is a limitation of power, not a grant of power, and is in addition placed in a section of limitations. It might be argued, therefore, that the power to suspend lies elsewhere and that this Clause limits that authority. This argument is opposed by the little authority there is on the subject. 3 The Records of the Federal Convention of 1787, at 213 (Max Farrand ed., 1937); Ex parte Merryman, 17 F. Cas. 144, 148 ( No. 9487) (C.C.D. Md. 1861); but cf. 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 464 (Edmund Randolph, 2d ed. 1836). At the Convention, Gouverneur Morris proposed the language of the present Clause: the first section of the Clause, down to “unless” was adopted unanimously, but the second part, qualifying the prohibition on suspension was adopted over the opposition of three states. 2 Farrand, supra, at 438. It would hardly have been meaningful for those states opposing any power to suspend to vote against this language if the power to suspend were conferred elsewhere.

5

Cf. Clauses 7, 8.

6

2 Records of the Federal Convention of 1787, at 341 (Max Farrand ed., 1937).

7

Id. at 438.

8

Id.

9

3 Joseph Story, Commentaries on the Constitution of the United States 1336 (1833).

10

Ex parte Bollman, 8 U.S. (4 Cr.) 75, 101 (1807).

11

Cf. J. Randall, Constitutional Problems Under Lincoln 118–39 (rev. ed. 1951).

12

Including a finding by Chief Justice Roger Taney on circuit that the President’s action was invalid. Ex parte Merryman, 17 F. Cas. 144 ( No. 9487) (C.C.D. Md. 1861).

13

Act of March 3, 1863, 1, 12 Stat. 755. See George Sellery, Lincoln’s Suspension of Habeas Corpus as Viewed by Congress, 1 U. Wis. History Bull. 213 (1907).

14

The privilege of the Writ was suspended in nine counties in South Carolina in order to combat the Ku Klux Klan, pursuant to Act of April 20, 1871, 4, 17 Stat. 14. It was suspended in the Philippines in 1905, pursuant to the Act of July 1, 1902, 5, 32 Stat. 692. Cf. Fisher v. Baker, 203 U.S. 174 (1906). Finally, it was suspended in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, 67, 31 Stat. 153 (1900). Cf. Duncan v. Kahanamoku, 327 U.S. 304 (1946). For the problem of de facto suspension through manipulation of the jurisdiction of the federal courts, see discussion under Article III, ArtIII.S1.5.1 Overview of Congressional Control Over Judicial Power.

15

71 U.S. (4 Wall.) 2, 130–131 (1866).

16

Pub. L. No.

104-132

, §§ 101–08, 110 Stat. 1214, 1217–26, amending, inter alia, 28 U.S.C. §§ 2244, 2253, 2254, 2255, and Fed. R. App. P. 22.

17

Felker v. Turpin, 518 U.S. 651 (1996).

18

INS v. St. Cyr, 533 U.S. 289 (2001).

19

533 U.S. at 301 (internal quotation marks and citation omitted).

20

140 S. Ct. 1959, 1968–69 (2020).

21

In relevant part, IIRIRA limited the review that an alien in expedited removal proceedings could obtain through a habeas petition by allowing habeas review of three matters: (1) whether the petitioner was an alien; (2) whether the petitioner was “ordered removed” ; and (3) whether the petitioner had already been granted entry as a lawful permanent resident, refugee, or asylee. See 8 U.S.C. § 1252(e)(2)(A)–(C). The asylum seeker in Thuraissigiam challenged these jurisdictional limits, arguing they precluded review of a determination that he lacked a credible fear of persecution in his home country, of which an affirmative finding would enable him to enter the United States. Thuraissigiam, 140 S. Ct. at 1966–68.

22

The respondent in Thuraissigiam stated “there is no reason” for the Court to consider anything beyond whether the writ of habeas corpus, as it existed in 1789, encompassed the relief sought. Thuraissigiam, 140 S. Ct. at 1969 & n.12.

23

Id. at 1969 (discussing the views of William Blackstone and Justice Joseph Story, among others).

24

Id. at 1969–71.

25

In so concluding, the Court rejected the argument that three bodies of case law—(1) “British and American cases decided prior to or around the time of the adoption of the Constitution;” (2) decisions from the Court during the so-called “finality era” from the late nineteenth to the mid-twentieth century; and (3) two more recent cases—suggested that the Suspension Clause “guarantees a broader habeas right” than the right to contest the lawfulness of restraint and seek release. Id. at 1971–82. With regard to the early British and American cases, the Thuraissigiam Court viewed those cases to suggest that the habeas writ could only be used to secure a “simple release” from government custody. Id. at 1971–76. With respect to the finality-era case law, the Court viewed those cases, including Nishimura Ekiu v. United States, 142 U.S. 651 (1892), as simply interpreting the scope of the then-existing habeas statute and not what limitations the Suspension Clause imposes on Congress. Thuraissigiam, 140 S. Ct. at 1976–81. Finally, the Court distinguished two more recent cases, Boumediene v. Bush, 553 U.S. 723 (2008) and INS v. St. Cyr, 533 U.S. 289 (2001), holding that the former case did not pertain to immigration and that the latter case involved using habeas as a vehicle to seek the release of aliens who were in custody pending deportation proceedings. Thuraissigiam, 140 S. Ct. at 1981–82.

26

Thuraissigiam, 140 S. Ct. at 1963–64.

27

No. 21-857, (U.S. June 22, 2023)

28

Id.

29

Felker v. Turpin, 518 U.S. 651, 663–64 (1996). See INS v. St. Cyr, 533 U.S. 289, 300–01 (2001) (leaving open the question of whether post-1789 legal developments are protected); Swain v. Pressley, 430 U.S. 372 (1977) (finding “no occasion” to define the contours of constitutional limits on congressional modification of the writ).

30

Felker v. Turpin, 518 U.S. 651 (1996).

31

Jones v. Hendrix No. 21-857, slip op. at 19 (U.S. June 22, 2023).

32

128 S. Ct. 2229 (2008).

33

In Rasul v. Bush, 542 U.S. 466 (2004), the Court found that 28 U.S.C. § 2241, the federal habeas statute, applied to these detainees. Congress then removed all court jurisdiction over these detainees under the Detainee Treatment Act of 2005, Pub. L. No.

109-148

, § 1005(e)(1) (providing that “no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay).” After the Court decided in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the Detainee Treatment Act did not apply to detainees whose cases were pending at the time of enactment, it was amended by the Military Commissions Act of 2006, Pub. L. No.

109-366

, to also apply to pending cases where a detainee had been determined to be an enemy combatant.

34

128 S. Ct. at 2251.

35

128 S. Ct. at 2258, 2259.

36

Under the Detainee Treatment Act, Pub. L. No.

109-148

, Title X, Congress granted only a limited appeal right to determination made by the Executive Branch as to “(I) whether the status determination of [a] Combatant Status Review Tribunal . . . was consistent with the standards and procedures specified by the Secretary of Defense . . . and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” § 1005(e)(2)(C).

37

128 S. Ct. at 2263, 2275.

38

The Court focused in particular on the inability of the reviewing court to admit and consider relevant exculpatory evidence that was not introduced in the prior proceeding. The Court also listed other potential constitutional infirmities in the review process, including the absence of provisions empowering the D.C. Circuit to order release from detention, and not permitting petitioners to challenge the President’s authority to detain them indefinitely.