Is suspension a political question?

 
INTRODUCTION 
I. THE HISTORY AND MEANING OF SUSPENSION 
II. THE CONVENTIONAL WISDOM ON THE JUSTICIABILITY OF SUSPENSION 
III. JUDICIAL TREATMENT OF "POLITICAL QUESTIONS". 
     A. Defining Political Questions 
     B. Questioning the Political Question Doctrine 
IV. MAKING THE AFFIRMATIVE CASE FOR JUDICIAL ENFORCEMENT 
    OF LIMITATIONS ON THE SUSPENSION POWER 
    A. Of the Link Between the Great Writ and Core Due Process 
       Safeguards 
    B. Of Remedy-Stripping and Klein Problems 
    C. In the Background: The State Courts 
V. THE COURTS AND WAR POWERS CASES MORE GENERALLY 
VI. THE NEXT QUESTIONS: THE EFFECTS OF A VALID SUSPENSION AND 
    HOW COURTS SHOULD SCRUTINIZE EXERCISES OF THE SUSPENSION 
    POWER 
CONCLUSION 

INTRODUCTION

Of late, several scholars have contended that the political question doctrine is heading toward its demise. (1) Paraphrasing Mark Twain, one might say that rumors of the doctrine's death are much exaggerated. Notwithstanding what these scholars have viewed as the Supreme Court's proclivity for "control[ling] all things constitutional," (2) three members of the Court recently suggested that the political question doctrine remains very much alive and well. These Justices may have breathed new life into the doctrine, particularly as they argued that it shields from judicial review certain tools available to the political branches in waging this country's ongoing war on terrorism.

The suggestion came in Hamdi v. Rumsfeld, (3) a case in which the Court addressed whether the government may detain an American citizen (possibly indefinitely) outside of the judicial process, as the government claimed the right to do. (4) The Suspension Clause of the Constitution lurked prominently in the background of Hamdi; indeed, Justice Scalia, joined by Justice Stevens, opined in dissent that the Clause rendered Hamdi's detention unlawful and dictated his immediate release. (5) Justice Scalia further suggested that if Congress had suspended the writ of habeas corpus following the September 11 attacks, the judiciary could not have reviewed the constitutionality of such an act.

The Suspension Clause is one of the few express "emergency" provisions in our Constitution. It provides: "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." (6) What precisely the Clause protects from suspension has invited to date scarce judicial discussion and authoritative guidance. Instead, this issue has for the most part been debated among legal scholars. (7) But assuming, as most do, that the Clause protects some core habeas writ in the absence of a valid suspension, when and how the writ may be suspended takes on great importance.

Post-September 11, debating the suspension power is no longer the exclusive province of academics. Following the devastating September 11 attacks, the Bush Administration apparently asked Congress to suspend the writ of habeas corpus in some fashion. (8) Five years later, this country is waging a war on terrorism of indefinite duration. The potential for additional terrorist attacks on American soil is unfortunately all too real, (9) and there is good reason to believe that another attack would be met with invocation of the suspension power by Congress. Accordingly, whether the judiciary could review the lawfulness of any such suspension could be one of the most important legal issues to arise out of the war on terrorism.

Imagine, for example, that Congress suspends the writ of habeas corpus with respect to "all known or suspected terrorists" or individuals of a particular ethnicity or religious affiliation. Could the judiciary review the constitutionality of the suspension or, to use the terminology of Baker v. Carr, (10) would such a case present a nonjusticiable "political question"? What if Congress suspends the writ nationwide to address a localized "Rebellion" or suspends the writ to address an "Invasion" of illegal immigrants? How one answers these questions matters a great deal, if for no other reason than once suspension is executed lawfully, the courts are effectively shuttered and "the Government is entirely free from judicial oversight." (11)