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COPYRIGHT 2006 Stanford Law School
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)
In Hamdi, Justice Scalia suggested that the courts could not review an exercise of the suspension power to ensure that it followed from lawful premises. (12) In a separate opinion, Justice Thomas registered his strong agreement with the proposition. (13) These Justices were not writing on a blank slate in addressing this issue. Indeed, several prominent early jurists offered similar views on this question, starting with Chief Justice John Marshall, (14) the author of the Court's maiden discussion of the political question doctrine, (15) as well as Justice Story (16) and Chief Justice Taney. (17)
Given the conventional view that suspension presents a nonjusticiable political question, one might be inclined to accept the matter as settled. This would be a mistake. Further scrutiny is warranted for several reasons. To begin, there is no settled authority on the justiciability of suspension, and the handful of jurists who have expressed an opinion on the question have done so cursorily, offering little more than an institutional hunch as a basis for their conclusions. In fact, to date, no jurist or scholar has explored this matter in any detail. Here, I seek to fill that void and make a case for why the conventional wisdom is mistaken and suspension should be not be viewed as a political question.
By its very terms, the Suspension Clause requires that there be an "Invasion" or "Rebellion" before Congress may suspend the writ. Congress's suspension power also is limited by external constitutional restraints, such as the Fifth Amendment's Due Process Clause and likely its equal protection component. (18) An argument that suspension is a nonjusticiable political question would lead to the result that suspension is a matter on which the Constitution imposes such restraints, but that many, if not all, of those restraints are not subject to judicial enforcement. This conclusion should be rejected because it is at odds with the Great Writ's heritage and place in our constitutional structure and because it would have troubling ramifications for the separation of powers and the institution of judicial review.
As background, Part I begins with an exploration of the ongoing debate over the meaning of the Suspension Clause and a review of historical exercises of the suspension authority in this country. Part II consults the Constitutional Convention and ratification debates as well as prior commentary to ascertain what has been said to date with respect to the justiciability of suspension. Part III begins the analysis of whether suspension should be viewed as nonjusticiable by reviewing the existing debate over the political question doctrine to see what guidance may be had from the Supreme Court's decisions in this area (19) as well as the academic literature. (20) In exploring the various models that have been proposed for defining the doctrine or rejecting it wholesale, however, it quickly becomes apparent that they advance our inquiry only so far. Although the academic debate raises many of the larger separation of powers concerns that must animate the analysis, ultimately seeking to determine the justiciability of suspension by referencing these models only highlights many of their larger failings. Part III concludes, according-y, by arguing that resolving the justiciability of suspension instead requires narrowing our focus to the purpose and history of the Great Writ as well as how it fits within our broader constitutional scheme.
Part IV therefore explores the relationship between the Suspension Clause and other constitutional safeguards as well as the unique status of the writ of habeas corpus as a constitutional remedy, concluding that these inquiries demonstrate why suspension should not be viewed as a political question. As it came to this country from England, the Great Writ offers the judicial remedy of discharge to those deprived of their liberty without any--much less due-process. Where the Executive detains someone without affording that party an impartial forum to test the lawfulness of the detention, this act unquestionably constitutes a deprivation of liberty without due process. Indeed, the historic link forged between the habeas remedy and the realization of the most fundamental of due process guarantees is so strong that in the absence of a Suspension Clause the very same remedy likely still would be mandated by the Constitution. Thus, a suspension predicated on invalid grounds must be understood to violate the core ideals of due process. That is, the internal predicates required for a valid suspension (the existence of a "Rebellion or Invasion") are inextricably intertwined with the core due process right to seek impartial review of the Executive's justification for a prisoner's detention. This relationship, in turn, has important ramifications for the justiciability analysis. To the extent that a suspension is predicated on invalid premises (the absence of a "Rebellion or Invasion"), an individual subject to the Due Process Clause's protections and held extrajudicially will have a viable due process claim to press in the courts. In such a case, if a court declined to consider granting the writ, it would go beyond merely assigning political question status to the Suspension Clause's internal limitations. By leaving the prisoner's due process claim unprotected, the court would assign it the same status as well. And this simply cannot be squared with our constitutional tradition, which places protection of due process rights at the heart of the judicial role.
In addition, special problems are presented where Congress improperly withdraws the Great Writ--the only meaningful judicial remedy for unconstitutional deprivations of liberty. Strictly speaking, suspension itself does not withdraw jurisdiction from the courts, but displaces an important judicial tool for remedying unconstitutional deprivations of liberty. Thus, an act of suspension gives the custodian justification, when asked by a court, for refusing to set forth the precise cause of a prisoner's detention. Where a suspension follows from invalid premises, however, a court that accepts a custodian's blanket reliance on the suspension, and inquires no further into the legality of the detention, itself plays a role in the violation of the detainee's fundamental right to due process. In so doing, the court permits Congress to employ the courts "as a means to an [unconstitutional] end," something that the Court made clear long ago in United States v. Klein (21) Congress may not do.
Skeptics nonetheless will question the idea that the internal limitations of the Suspension Clause are judicially enforceable. As explored in Part V, however, from the time of Chief Justice Marshall to the recent Hamdi decision, the Supreme Court consistently has reserved a role for itself to review exercises of the war power in certain contexts, albeit often deferentially. Indeed, in the analogous martial law context, the Court has made clear that "[w]hat are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." (22) The same should hold true with respect to exercises of the suspension power.
Finally, Part VI discusses an important question left in the wake of this analysis. Once it is accepted that the judiciary may enforce internal and external limitations on the suspension power, there remains the matter of how that policing is undertaken. In particular, when enforcing the internal limitations, courts will have little precedent on which to draw in choosing the appropriate measure of scrutiny. There may be reason to accord the political branches considerable deference in this realm, but if the availability of habeas corpus is a fundamental right (as its specific inclusion in the Constitution suggests), should that warrant a higher level of scrutiny where the right is displaced? (Deference, after all, gave us Korematsu. (23)) I do not seek to make a case in favor of one approach or the other, but instead contend that it is on this question that future discussion of the suspension authority should focus, not on the question of justiciability.
In the end, I contend that suspension does not present a political question, at least insofar as that assertion would be advanced to shield the constitutionality of an exercise of the suspension authority entirely from judicial review. As the war on terrorism continues with no end in sight, the occasion soon may come for the Court to resolve this matter. In such an event, the Court should recognize that suspension is indicative of many issues viewed generally as political: that certain legislative decisions are in some respects the culmination of political choices does not preclude a role for the courts in reviewing those choices for compliance with our constitutional values.
I. THE HISTORY AND MEANING OF SUSPENSION
Article I, Section 9, Clause 2 of the Constitution 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." (24) It is fair to observe that "[t]he suspension clause, so simple in appearance, is fraught with confusion." (25) The Clause itself does not purport expressly to create a right to habeas corpus review; in the same vein, it offers little in the way of detail as to what precisely it protects. We have made it this far in our constitutional history without settling on the scope of its protections in large part because exercises in suspension have been few in number and of limited duration.
The Framers apparently believed in some inherent right to the writ of habeas corpus or at least assumed that it would be regularly available as a well-established common law writ. One is left to imply as much from the Suspension Clause, an affirmative habeas right being nowhere enumerated in the Constitution. (26) But even if one accepts this broad premise, which is controversial to be sure, questions abound as to the meaning of the Suspension Clause. It remains unsettled, for example, whether the right to habeas as conceived by the Framers and protected by the Suspension Clause guarantees some form of judicial review of the detention of both federal and state prisoners, or solely federal prisoners, which seem to have been on the minds of the Framers. (27) Nor have the courts resolved whether the assumed right to habeas review encompasses anything beyond a small core of traditionally protected claims: namely, those attacking the jurisdictional competency of a convicting court or the legal sufficiency of a detention, where the detained is restrained by a nonjudicial order. (28) It is likewise unclear whether the Clause "limits congressional authority to withdraw federal habeas jurisdiction if it is once conferred; or whether it merely restricts congressional authority to forbid the exercise of habeas corpus jurisdiction by state courts." (29) Finally, there exists a debate over whether Congress, by expanding the scope of the writ, concomitantly expands the scope of the Clause s protections. (30)
What little judicial guidance we have on these matters comes mainly from Chief Justice Marshall's opinion in Ex parte Bollman. (31) There, some of the Chief Justice's language suggested that the Suspension Clause does not itself guarantee a right to habeas review in the courts but instead leaves the decision whether and to what extent to provide for habeas in the first instance largely to the discretion of Congress. Bollman posited that "the power to award the writ by any of the courts of the United States ... must be given by written law." (32) Building on this idea, Justice Scalia has suggested that the Clause does not "guarantee[] any particular habeas right that enjoys immunity from suspension" but promises only that whatever right is granted by the legislature may not be suspended temporarily except in cases of rebellion or invasion. (33)
Notably, Bollman continued with the observation that the First Congress "must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted." (34) Here, Marshall planted the seeds of a middle-ground position: the Constitution does not by its own terms grant habeas jurisdiction (as, for example, it confers original jurisdiction upon the Supreme Court); at the very least, however, it does oblige Congress to give "life and activity" to the writ by permitting habeas review of core cases in some court. (35) This understanding of the Suspension Clause makes sense of other constitutional provisions. After all, as one scholar has noted, "the habeas corpus remedy is essential to the full realization of ... other [constitutional] guarantees, most particularly that of due process of law in the Fifth Amendment." (36) Likewise, this understanding draws support from the writ's English heritage, for "the development of the writ in England was closely linked with the need to make effective the guarantees of the Magna Carta, especially that of due process of law." (37)
It is well beyond the purview of this Article to explore in detail the difficult questions respecting the scope and meaning of the Suspension Clause. It will serve our purposes to presume that this "middle-ground" reading of Bollman is the best reading and that the Suspension Clause obliges Congress to provide for a habeas remedy in a range of core cases in the absence of a valid suspension of the writ. (38) As explained below, moreover, the relationship between the Great Writ and core due process values strongly supports such a reading. (39) With respect to the paradigmatic core case, I have in mind federal prisoners detained extrajudicially by the Executive, the scenario most implicated by the ongoing war on terrorism. (To simplify the case even further, assume that our federal prisoner is an American citizen who was detained domestically and is held on American soil. (40)) There is good reason to view these cases as implicating the core of the writ's protections, for at the time of the Founding, "the use of habeas corpus to secure release from unlawful physical confinement ... was ... an integral part of our common-law heritage." (41)
Although the Supreme Court has never spoken as a full Court to the issue, it is widely thought that only Congress can suspend the writ. (42) Given the location of the Suspension Clause in Article I, which "vest[s] in ... Congress ... all legislative powers herein granted" and imposes well-accepted limitations on Congress's authority, this conclusion seems to be on point. (43) President Jefferson apparently thought so, for he acquiesced when Congress rejected his recommendation that it suspend the writ during the Burr conspiracy. (44) The clearest judicial pronouncement on the question came in Chief Justice Taney's opinion in Ex parte Merryman, in which he opined that the suspension authority clearly falls within Congress's purview. (45) President Lincoln, as is well known, did not agree with this view and suspended the writ,on his own initiative several times. (46) Likewise, he ignored Chief Justice Taney s command in Merryman that a federal prisoner detained pursuant to presidential order be produced. (47) Congress defused the controversy with its subsequent delegation to Lincoln of the authority to suspend the writ. (48) Although it is hardly obvious that Congress may delegate the suspension authority to the Executive, (49) the few instances of suspension in this nation's history have each followed pursuant to congressional delegations of the power.
The many questions going to the scope and meaning of the Suspension Clause remain unsettled largely because history has witnessed few attempts to suspend the writ in this nation. This trend stands in stark contrast to the more common suspension of habeas corpus in England during the late seventeenth and eighteenth centuries. Parliament suspended the Habeas Corpus Act of 167950 numerous times during this period, usually with respect to a limited class of persons who were thought to be plotting against the king. (51) Suspensions occurred in 1688, 1696, 1714, 1722, 1744, and again in the colonies during the American Revolution. (52)
By contrast, in keeping with its rejection of Jefferson's effort to secure suspension to deal with the Burr conspiracy, (53) "[o]nly in the rarest of circumstances has Congress seen fit to suspend the writ." (54) During the Civil War, Congress enacted its first statute authorizing suspension, empowering the Executive to suspend the writ as necessary to advance the war effort. (55) As noted above, President Lincoln did not await congressional delegation of the authority before proclaiming several suspensions of the writ. (56) Under the Suspension Act of 1863, Lincoln announced additional proclamations of suspension. (57) Notably, in the 1863 Act, Congress reserved a measure of judicial review over the suspension authority. It required, for example, that lists of those detained be provided to the local federal district court and directed the courts to order release of a prisoner where the grand jury failed to indict and the prisoner took an oath of allegiance to the Union. (58) In all events, during the Civil War, Union forces detained thousands of individuals, many of whom were detained during the years preceding Congress's delegation of the power to suspend. (59)
The three remaining episodes of congressional authorization of suspension likewise came pursuant to a delegation of the authority. In each of these three episodes, Congress limited its authorization to a confined geographic area. First, in the Ku Klux Klan Act of 1871, Congress authorized President Grant to suspend the writ as needed to address the lawless conditions wrought by the Klan in southern states. (60) The 1871 Act detailed the conditions that would justify suspension. For example, Congress authorized the President to use the power to address the Klan where "organized and armed, and so numerous and powerful as to be able, by violence, to either overthrow or set at defiance the constituted authorities of such State...." (61) Congress also expressly limited the duration of its delegation, providing that "the provisions of this section shall not be in force after the end of the next regular session of Congress." (62) Upon learning that nine counties in the South Carolina upcountry effectively were in a state of rebellion, Grant invoked his authority under the 1871 Act and suspended the writ to aid federal efforts to root out the Klan in that area. (63) Major Lewis Merrill's troops "responded with a massive round-up of suspects," (64) a response that "would have been impossible if normal procedural safeguards had been honored." (65) Most of those captured were then indicted on various federal charges. (66)
Second, in a 1902 Act, Congress authorized the Governor of the Philippines Territory to suspend the writ of habeas corpus as needed to address rebellion, insurrection, or invasion therein. (67) Shortly thereafter, the Governor suspended the writ in two provinces for a period of approximately nine months. (68) He did so expressly to address an "open insurrection" by certain organized bands of ladrones against authorities in the provinces, which were experiencing a breakdown of the judicial process due to "a state of insecurity and terrorism among the people." (69) Those arrested were "detained to quell the insurrection and to prevent the further perpetration of banditry on the people." (70)
Finally, in the Hawaii Organic Act of 1900, Congress enacted a broad authorization granting the governor of the Hawaiian Territory the power to suspend the writ as needed to address threats of rebellion or invasion in the territory. (71) Under the Act, any suspension by the governor was to remain in effect only "until communication can be had with the President and his decision thereon made known." (72) It was not until the bombing of Pearl Harbor in December of 1941, however, that the governor exercised his powers under the Act. Immediately following the bombing (indeed, on that very afternoon), he suspended the writ of habeas corpus and declared martial law on the islands. (73) President Roosevelt quickly approved the Governor's actions. (74) Military government took over all affairs in the territory, including the courts. "Trial by jury and indictment by grand jury were abolished" during this period. (75) Likewise, most if not all criminal defendants were tried before military tribunals, (76) and military authorities detained some number of citizens for subversive activities without bringing criminal charges against them. (77) A transition back to civil law began in 1943, (78) culminating in a 1944 Presidential Proclamation restoring the privilege of the writ and terminating martial law. (79)
Since the time of World War II and the suspension of the writ in the Hawaiian Territory, the idea of suspension has resided largely outside the public discourse. Such was the case at least until the events of September 11, 2001. Circulated reports suggested that the Bush Administration proposed some form of suspension as part of the post-September 11 legislation that it sent to the Hill. (80) As the war on terrorism continues unabated some five years later and terrorism continues to be an ever-present concern, (81) the possibility that Congress will enact some limited form of suspension no longer seems fanciful. If anything, the prospect seems all the more likely in light of the Supreme Court's recent willingness to review the detention of persons captured as part of our military's efforts to eradicate terrorism.
To be sure, it is not obvious that another suspension may be on the horizon. The September 11 attacks, however, reminded us all too vividly of the potential for violence to come to American shores, as it did on that infamous December day at Pearl Harbor. In our ongoing war on terrorism, moreover, the military has captured and detained numerous persons, and the current Administration has fought aggressively to preclude judicial review of the propriety of such detentions. (82) Detainees, in turn, have sought review of their detentions in American courts by filing petitions for writs of habeas corpus. In the 2003 Term, the Supreme Court faced three such cases and issued opinions generally favoring the availability of the writ to such petitioners. (83) Yet another decision protective of detainee rights followed this past Term in Hamdan v. Rumsfeld. (84)
These cases remind us that the writ remains the most prominent means of challenging government detention, whatever the likeability of the petitioner. (85) But the rising tide of political sentiment against expansive notions of federal habeas corpus (stemming in part from the Court's decisions in these cases) already has fueled proposals--some of which Congress has enacted into law--to curtail the writ's scope generally and to reverse outright some of the Court's decisions in this line. In the 2005 Real ID Act, for example, Congress curtailed the scope of 28 U.S.C. [section] 2241 habeas review over immigration removal orders. (86) Congress did so in response to the Court's broad interpretation of section 2241 to permit judicial review of removal matters in INS v. St. Cyr. (87)
Most recently, Congress passed and the President signed the Military Commissions Act of 2006, (88) which extends the Detainee Treatment Act of 2005. (89) Together, the two laws purport to overrule the Supreme Court's holding in Rasul v. Bush. In Rasul, the Court interpreted the writ provided for in section 2241 to permit aliens detained at Guantanamo Bay and alleged to be enemy combatants to seek review of the legality of their detentions in federal court. (90) The Detainee Treatment Act amends section 2241 to clarify that "no court, justice, or judge shall have jurisdiction to hear or consider ... an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." (91) The Military Commissions Act goes further, apparently applying to pending habeas petitions and barring any court or judge from considering any habeas petition filed "on or behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (92) The new Act provides instead that any judicial review of the detention of such individuals may only come at the conclusion of combatant status determination hearings and appeals, and that such review is limited to exclude, among other things, challenges relating to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of any such alien. (93)
This new legislation surely will invite challenges rooted in the Suspension Clause. (94) Likewise, these legislative efforts suggest the possibility that Congress may experiment further with curtailing the availability of habeas corpus, (95) at least with respect to alien enemy combatants. Indeed, in the event of an additional terrorist attack on American soil, Congress surely will give serious consideration to suspending the writ in a broad and transparent fashion. (96) Suspensions have been rare and limited in our history, but they have always responded to a perceived need for extraordinary measures to reconstitute the public order. This same perceived necessity likely will inform any public debate following another terrorist attack and lead to the drawing of parallels between current times and the unrest wrought by Confederate sympathizers and the Klan during and following the Civil War, revolting ladrones in the Philippines at the turn of the century, and those engaging in subversive activities in Hawaii during World War II. (97) In short, it is fair to say (harkening back to Justice Jackson's observations following World War II) that after September 11, "[w]e can no longer take either security or liberty for granted." (98)
The Suspension Clause was designed as a safety valve of sorts, the Constitution's only "express provision for exercise of extraordinary authority because of a crisis." (99) It is one of the few true "emergency" provisions in our Constitution (100) and its effect on fundamental liberties in this regard is dramatic. (101) Whether the judiciary could review the lawfulness of any such suspension, accordingly, could well be one of the most important legal issues to arise out of the war on terrorism. (102)
Indeed, the kinds of questions that could arise in the event of a suspension will be at the same time difficult and of serious consequence to the rule of law and protection of individual rights in this country. For example, what if Congress suspends the writ today--some five years after the September 11 attacks--based on the premise that further terrorist attacks may be on the horizon and therefore the President needs the authority to detain all suspected terrorists extrajudicially until the threat has passed? Could Congress do so with respect to "all known or suspected terrorists or members of al Qaeda"? With respect to individuals of a particular ethnicity or religious faith? Could Congress suspend the writ indefinitely in light of the current Administration's assertion that this war will never end? What about in response to a war being waged overseas? Consider additional examples outside the context of the war on terrorism. For example, could Congress suspend the writ to counteract the so-called "invasion" of illegal immigrants that has captured headlines of late? Could Congress suspend the writ during peacetime because domestic crime is spiraling out of control? What if Congress, to address a localized insurrection, suspends the writ nationwide? Need the scope of a suspension be reconciled with the predicate conditions relied upon as justifying it? These are just some of the challenging and important questions implicated by the suspension authority. Arguably of still greater importance is the matter of who the final arbiter of these questions should be. It is to that matter that this Article now turns.
II. THE CONVENTIONAL WISDOM ON THE JUSTICIABILITY OF SUSPENSION
In reviewing the founding documents, it quickly becomes apparent that there is scarce evidence to suggest what, if anything, the Framers thought about whether a decision to suspend the writ should be subject to judicial review. During the Constitutional Convention, the Framers engaged in very little discussion of the Suspension Clause. What little discussion they had focused on whether to include some form of a habeas clause at all. (103) The notion of recognizing the power to suspend the writ appears to have stemmed from a proposal by Charles Pinckney, who "urg[ed] the propriety of securing the benefit of the Habeas corpus in the most ample manner" and suggested that "it should not be suspended but on the most urgent occasions, [and] then only for a limited time not exceeding twelve months." (104) Although acknowledging some need for suspension, Pinckney also thought it important to secure expressly the privilege of habeas corpus. When the matter emerged from the Committee of Detail, limited additional debate ensued. Madison's notes report that John Rutledge "was for declaring the Habeas Corpus inviolable--He did not conceive that a suspension could ever be necessary at the same time through all the States." (105) Wilson, in turn, "doubted whether in any case a suspension could be necessary, as the discretion now exists with Judges, in most important cases to keep in Gaol or admit to Bail." (106) Ultimately, the drafters seized on Gouverneur Morris's proposal that "[t]he privilege of the writ of Habeas Corpus shall not be suspended, unless where in cases of Rebellion or invasion, the public safety may require it." (107)
During the ratification debates, discussion of the Suspension Clause focused on, among other things, the question whether the Suspension Clause sanctioned suspension of the writ by the national government with respect to state prisoners. (108) Debate over the Suspension Clause also became part of the broader debate over whether the federal government would enjoy powers not expressly given to it by the new Constitution. (109) Along these lines, some expressed concern during the debates that a suspension power vested in the national government could be abused by the majority to silence political foes. (110) For this reason, various commentators, including Madison and Jefferson, were of the view that the Suspension Clause should be removed from the draft Constitution and in its place substituted a clause protecting the writ of habeas corpus as inviolate. (111)
It does not appear that the Framers ever discussed during the Convention or ratification debates whether judicial review of the constitutionality of a suspension would be appropriate. (112) This is not altogether surprising, given the paucity of discussion of judicial review in general at the Constitutional Convention. (113) Thus, we are left with little historical foundation from which to draw in analyzing the reviewability, if any, of a congressional decision to suspend the writ of habeas corpus. All that can be said is that some Framers, who ultimately lost on this matter, wanted no authority given to the new government to suspend the writ. It is also fair to say that many at the time of the Founding were concerned about the potential for the suspension power to be abused when placed in the hands of the majority.
Shortly following ratification, however, one of the leading early commentators on American law opined that a suspension following from invalid premises should not be respected by the courts as displacing the writ. In his "American's Blackstone," St. George Tucker observed that the writ may be suspended:
only[] by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion, or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ. (114)
Tucker's Americanized version of Blackstone's Commentaries was "the first major legal treatise on American law" and "one of the most influential legal works of the early nineteenth century." (115) Accordingly, his views on the justiciability of suspension should be taken seriously. Indeed, as I will argue below, I believe Tucker's view is right.
The Supreme Court has never spoken definitively with respect to whether suspension presents a nonjusticiable political question. Nor have scholars explored this issue in any detail--indeed, the matter largely has evaded their attention. (116) What little commentary exists on the issue instead comes in cursory discussion offered by various jurists usually speaking in dicta. Their views represent the conventional position on this issue, one that is at odds with that espoused by Tucker. The conventional view posits that the determination whether the circumstances warranting suspension exist (namely, whether there is a "Rebellion or Invasion") presents a quintessential political question the likes of which the judiciary should not review.
The first to speak to this issue was Chief Justice John Marshall. Toward the end of his opinion for the Court in Exparte Bollman, (117) Marshall observed that the legislature has the power to suspend the writ "[i]f at any time the public safety shall require [it]." (118) In a brief passage that spoke to issues not immediately presented in the Bollman case, Marshall said of the suspension authority: "That question depends on political considerations, on which the legislature is to decide." (119)
Some years later, in Ex parte Merryman, (120) Chief Justice Taney renewed these observations and expanded on them. The case posed the question whether the President enjoyed the constitutional authority to suspend the writ on his own. Taney held that Lincoln had acted beyond his powers in declaring the writ suspended because the authority to suspend resides with the legislature. (121) Taney went on to pen a lengthy opinion discussing the Suspension Clause in which he observed, among other things, that the Clause constitutes "a standing admonition to the legislative body of the danger of suspending [the writ], and of the extreme caution they should exercise, before they give the government of the United States such power over the liberty of a citizen." (122) He continued: "[C]ongress is, of necessity, the judge of whether the public safety does or does not require [suspension]; and their judgment is conclusive." (123)
In this discussion, Taney also quoted Justice Story's Commentaries. (124) There, Story observed:
[C]ases of a peculiar emergency may arise, which may justify, nay even require, the temporary suspension of any right to the writ.... [T]he right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it .... It would seem, as the power is given to congress to suspend the writ of habeas corpus, in cases of rebellion or invasion, that the right to judge, whether the exigency had arisen, must exclusively belong to that body. (125)
The most recent articulations of the conventional view came in the opinions of Justices Scalia and Thomas in Hamdi v. Rumsfeld. (126) The Hamdi case did not itself pose the question, as no Justice interpreted Congress's post-September 11 legislation as suspending the writ. Instead, it explored whether the Executive could detain an American citizen designated as an enemy combatant as part of counterterrorism efforts. A fractured Court concluded that Congress, in the Authorization for Use of Military Force (AUMF) (127) enacted following the September 11 attacks, granted the Executive this power. The Court determined, however, that any citizen detained must be given some opportunity to challenge his classification as an enemy combatant. (128) Justice Scalia, joined by Justice Stevens, dissented, arguing that Hamdi's detention was not authorized by Congress and, in any event, could follow only pursuant to a congressional suspension of the writ of habeas corpus. (129)
In his Hamdi opinion, Justice Scalia also offered the following views regarding the proper role of the judicial branch with respect to a suspension of the writ. Ascertaining whether the ends chosen by the Congress are sufficient to address a national emergency, he wrote,
is far beyond my competence, or the Court's competence, to determine.... But it is not beyond Congress's. If the situation demands it, the Executive can ask Congress to authorize suspension of the writ--which can be made subject to whatever conditions Congress deems appropriate.... To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an "invasion," and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court. (130)
Justice Thomas also dissented in Hamdi, albeit on far different grounds from Justice Scalia. Thomas, for his part, believed that the detention of someone like Hamdi fell "squarely within the Federal Government's war powers," and as such, the Court should not "second-guess that decision." (131) He also understood his colleague Justice Scalia to say "that this Court could not review Congress' decision to suspend the writ." (132) With this idea, Justice Thomas registered his agreement. (133)
The views of these Justices represent the conventional understanding of the justiciability of suspension. Beyond these cursory explorations of the justiciability of suspension, little else has been said on the matter. The most promising occasions for an actual holding from the...
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