Suspending Habeas II: The Suspension Clause and Justice Scalia

I apologize to readers of this blog for my persistent interest in suspending habeas corpus, but like I said, I am writing this paper . . . .

Anyway, one interesting question is whether the Suspension Clause, U.S. Const., Art. I, s. 9, means that, except when the privilege is suspended by Congress, some kind of habeas corpus must be available, at least in some courts, to some individuals. (I'm going to leave that last part vague for this post--maybe more details later on.)

(BTW, the Suspension Clause reads: 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.)

In other words, is there some kind of constitutional minimum of habeas corpus that applies, even if Congress doesn't legislate a habeas statute? That last part of the sentence is the key point. Another way of getting into this is to ask whether the Suspension Clause mandates habeas corpus, in some form, unless specifically suspended by Congress.

In a 2001 case, INS v. St. Cyr, Justice Scalia argued, in dissent, that the Suspension Clause only limits Congress's power to suspend habeas corpus; it does not require some minimal "constitutional" level of habeas corpus review even in the absence of congressional enactments.

Now, there is a lot to be said for that view. Because there is very little "federal common law," in the federal system one must always look for a statutory basis for jurisdiction and a cause of action. So, generally speaking, if you can't point to a statute, you can't get into federal court. If Congress failed to enact a habeas statute--or, given that it already has enacted one, if it repealed the habeas statute altogether instead of suspending it--the argument goes that the Suspension Clause would not be relevant to the analysis. As Justice Scalia argues, whether Congress enacts or repeals a habeas statute is up to Congress. Congress could even remove whole categories of cases from habeas jurisdiction without raising a constitutional issue. But it could not temporarily suspend habeas, if enacted, except under the terms of the Suspension Clause.

The majority opinion in St. Cyr strongly suggests, however, that five justices on the contemporary court would not agree. Because that case was decided under the theory of "constitutional doubt," we can't say for certain; but my guess is that there is support on the Court today for the "constitutional minimum of habeas corpus" theory. The Rasul case also suggests this to me--the Guantanamo Bay detainees case. (Maybe more on that in a subsequent post.)

But I actually wanted to make a more specific argument here. In his St. Cyr dissent, Justice Scalia argues as follows:

In the present case . . . Congress has not temporarily withheld operation of the writ, but has permanently altered its content [removing certain classes of excludable aliens from habeas corpus review]. That is, to be sure, an act subject to majoritarian abuse, as is Congress's framing (or its determination not to frame) a habeas statute in the first place. But that is not the majoritarian abuse against which the Suspension Clause was directed. It is no more irrational to guard against the common and well known 'suspension' abuse, without guaranteeing any particular habeas right that enjoys immunity from suspension, than it is, in the Equal Protection Clause, to guard against unequal application of the laws, without guaranteeing any particular law which enjoys that protection. And it is no more acceptable for this Court to write a habeas law, in order that the Suspension Clause might have some effect, than it would be for this Court to write other laws, in order that the Equal Protection Clause might have some effect.

I'm sorry, but I don't buy this analogy. The problem is that the Suspension Clause is just not parallel to the Equal Protection Clause (EPC) in this way. The EPC is a general principle; it applies to all laws. Even though the EPC doesn't state what laws the States will enact that will in turn be subject to it, there is no reason to doubt that States will enact laws that will be subject to it. The Court would never find itself in the position of having to "write" laws, for the States, to which it could then apply the EPC. In terms of the EPC, State law-making is a solid background assumption. The Suspension Clause, by contrast, states an incredibly narrow rule applicable to one and only one kind of legislation--suspension legislation. Because it's so specific, the implication appears to be that there has to be habeas corpus, unless suspended.

Consider an alternative EPC: "No State shall deprive any person of equal protection of the laws regarding public education." I would argue that this clause clearly implies a State duty to provide public education, even though it doesn't say that in so many words.

I would add here--although this is turning into the longest post, ever--that the Framers were almost certainly thinking of habeas corpus as it existed under the common law writ and not about congressional enactments at all. That would support the view that there is some kind of constitutional, extra-statutory habeas corpus under the Suspension Clause.