Suspension of Habeas Corpus
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.
The Magna Carta (1215) established that no one could be “imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed . . . except by the legal judgment of his peers or by the law of the land.” But the Magna Carta provided no mechanism of enforcement. Ultimately, the writ of habeas corpus (the “Great Writ”) came to be the means by which a court orders a person holding a prisoner to produce the legal grounds for the prisoner’s detention. Habeas corpus (or habeas corpus ad subjiciendum)—translated “[We command] you shall have the body [of the detained person] delivered [to court]” for examination—was originally part of the early English kings’ efforts to consolidate power. The King’s courts issued the writ to nonroyal authorities to release to the courts persons whom the King wished protected. Eventually, the King’s courts evolved into the common law courts, and they entertained the writ against the King himself or against his officials. Parliament codified the writ’s protections in The Habeas Corpus Act of 1679.
A century later, Sir William Blackstone could describe habeas corpus as “the great and efficacious writ.” Commentaries on the Laws of England (1765–1769). In treating of it extensively, Blackstone summarized, “[T]he glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the imprisonment of the subject may be lawful.” Although the Crown successfully limited the reach of habeas corpus to some of the empire’s colonies, it was not able to prevent its use in the American colonies prior to the Revolution. In 1774, the First Continental Congress featured it in its Appeal to the Inhabitants of Quebec as one of the “grand” rights available to Englishmen. It was available in common law in all thirteen colonies, and after independence, a number of states incorporated the right into their constitutions.
At the Constitutional Convention, the delegates simply assumed that habeas corpus was a preexisting and continuing right. Some delegates, such as John Rutledge, opposed any allowance in the Constitution for suspending the writ. But, in the end, there was agreement that in circumstances of war or invasion, it should be possible to suspend the writ, at least temporarily.
Yet for all that, the drafters failed to delineate in the text which part of the government possessed the legal power to suspend the writ. The original motion stated that the writ “shall not be suspended by the Legislature except upon the most urgent and pressing occasions.” After some debate, the Convention approved the wording in the present passive form, omitting where the power lay, and placing the clause alongside others dealing with the judiciary.
In the Committee of Style, however, Gouverneur Morris may have resolved the ambiguity. In organizing the text along separation of powers lines, Morris shifted the clause from among those dealing with the courts to Article I, focused on Congress. It is true that Morris did not rewrite the clause to be an affirmative grant of power to Congress, such as those listed in Article I, Section 8.But it may have been that the clause’s wording as protective of a right could not readily or appropriately be translated into a power.
Nonetheless, the textual ambiguity remained, prompting President Abraham Lincoln’s famous suspension of the writ during the Civil War and his refusal to obey Chief Justice Roger B. Taney’s ruling, on circuit, that only Congress possessed the power to suspend. Ex parte Merryman (1861). Lincoln temporarily mooted the issue by ordering the release of militarily held civilian prisoners in late 1862, but the controversy that Lincoln’s action engendered was not fully resolved until Congress passed the Habeas Corpus Suspension Act in 1863. A century and a half later, in Hamdi v. Rumsfeld (2004), the Supreme Court confirmed that only Congress possesses the constitutional power to suspend the writ.
Other perplexing questions remained, however. Did Congress need to codify the right and its procedures, as had Parliament in 1679, in positive law? To this, Chief Justice John Marshall seemed to give an unequivocal “yes” in Ex parte Bollman (1807). “[F]or the meaning of the term ‘habeas corpus,’” he wrote, “resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States must be given by written law.” He noted the moral obligation that must have moved the First Congress to provide for habeas corpus relief for persons held in federal custody: “they 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.” A number of recent commentators have contested Marshall’s position. They conclude that the Framers of the Constitution regarded habeas corpus as an implicit judicial power, which the courts could exercise in relation to persons held by either federal or state courts without need of congressional authorization. Under that interpretation, Congress could provide the forms for habeas relief through its use of the Necessary and Proper Clause (Article I, Section 8, Clause 18), or it could, under its Article I powers, employ its limited capacity to suspend. Recently, Justice Clarence Thomas opined that habeas corpus was indeed a constitutional right, one that was a “privilege or immunity” of national citizenship and protected against state infringement by the Fourteenth Amendment. McDonald v. City of Chicago (2010)
Nonetheless, since 1789, Congress has continued to regulate the availability of habeas corpus through statute. In 1867, for example, to alleviate the problem of former slaves being arrested and jailed in the South, Congress expanded habeas protection to persons “restrained . . . in violation of the constitution, or any treaty or law of the United States,” in the Habeus Corpus Act. In 1868, Congress amended the act to prevent the Supreme Court from hearing appeals from lower court decisions under the 1867 Act. In Ex parte McCardle (1869), the Court approved the validity of the Congress’s removal of Supreme Court appellate jurisdiction.
The modern Supreme Court, however, has moved to limit Congress’s discretion in removing habeas corpus jurisdiction from the federal courts. In INS v. St. Cyr (2001), Justice John Paul Stevens for a narrow majority of the Court declared: 1) that if Congress wishes to repeal a previous grant of habeas jurisdiction, it must do so clearly and unambiguously; 2) that habeas corpus was an available, i.e., preexisting, remedy against unlawful executive action at the time the Constitution went into effect; and 3) that therefore, Congress may limit available recourse to habeas corpus only when there is an “adequate” procedure available to contest the legality of executive action. Otherwise, Congress, by going too far, could run afoul of the Suspension Clause. Justice Stevens also doubted whether Chief Justice Marshall in Bollman really intended to affirm that the only route to habeas relief was through congressional authorization. If that were true, Stevens observed, Congress could by inaction effect a permanent suspension of the writ when the Constitution allowed for only a temporary suspension during an emergency.
During the Warren Court era, the availability of habeas relief enlarged. Much of the growth occurred through the incorporation of many of the procedural protections of the Bill of Rights into the Fourteenth Amendment, which made them applicable to the states. In addition, the Court expanded the definition of “custody” to include more than arrest, allowed for successive habeas petitions in the same case, and permitted habeas actions even when defendants had failed to raise timely objections in the court below. The cascading amount of habeas petitions allowed by the courts soon engendered a reaction from the Supreme Court.
Beginning in the 1970s, the Supreme Court changed course and began to narrow the ready use of habeas actions. In Stone v. Powell (1976), the Court held that a habeas petition was not appropriate when the petitioner had the opportunity to adjudicate his substantive claim in the court below. In Wainwright v. Sykes (1977), the Court deferred to the state’s “contemporaneous objection rule” to bar a habeas petition when the petitioner did not follow the state’s requirements for lodging objections during a trial. The result is that federal courts are no longer hearing habeas claims as before, and most are lodged at the state level.
Congress also tried to narrow the opportunities for habeas petitions. After the World Trade Center bombing of 1993 and the Oklahoma City bombing of 1995, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, which prohibited prisoners held under state law from seeking habeas relief in federal court unless the state court’s decision was contrary to clearly established federal law or was based on an “unreasonable determination of the facts.” Further, the law prohibited successive habeas petitions by the same defendant and required all claims to be consolidated into one appeal. The Ninth Circuit agreed with other circuits that found that the Antiterrorsm and Effective Death Penalty Act is not a violation of the Suspension of Habeus Corpus Clause as it “simply modifies the preconditions for habeas relief, and does not remove all habeas jurisdiction.” Crater v. Galaza (9th Cir. 2007).
Congress and the Court came into collision following the attacks of September 11, 2001. In Hamdi, the Supreme Court heard a habeas petition and ruled that a detained United States citizen needed to be afforded the opportunity to contest the grounds of his detention. In response, Congress passed the Detainee Treatment Act of 2005, removing habeas jurisdiction from all federal courts regarding detained aliens, and vesting any appeal from the decisions of military tribunals in the U.S. Court of Appeals for the District of Columbia. But in Hamdan v. Rumsfeld (2006), the Court ruled that the Detainee Treatment Act did not apply to a pending case, and went on to accept the habeas petition and rule that the military tribunals established by executive action were unconstitutional. Congress reacted by passing the Military Commissions Act of 2006, establishing military commissions and explicitly removing the possibility of habeas corpus relief for alien detainees as stated in the Detainee Treatment Act of 2005.
In Boumediene v. Bush (2008), the Supreme Court squarely ruled that removal of habeas jurisdiction from federal courts was valid only if there were adequate and effective substitutes for protecting a defendant’s procedural rights. Because those substitutes were lacking, the Court held that Congress had violated the Suspension of Habeas Corpus Clause. However, the federal circuit courts have decided many cases subsequently and based upon a finding that where Congress has provided an adequate and effective substitute for habeas review, the consistent rulings were that there was no violation of the Suspension Clause.
Federalism concerns have also influenced the interpretation of the Suspension Clause. In Bollman, Chief Justice Marshall drew a clear line between federal habeas authority and state courts. Some delegates at the Constitutional Convention had presumed that state courts could issue writs for prisoners under federal authority, and that therefore Congress could, in appropriate circumstances, suspend writs in state courts. That presumption was plausible, because the state courts were already in the business of hearing habeas petitions, and there was no guarantee that Congress would set up a federal court system anyway. (See Inferior Courts, Article I, Section 8, Clause 9; and Article III, Section 1). In fact, some state courts early on did exercise such authority over federal prisoners. But Justice Marshall rejected any such state authority. In Bollman, he held that the Suspension of Habeas Corpus Clause applied only to persons held under federal control. The Supreme Court has consistently confirmed Marshall’s interpretation. In 1859, for example, the Court unanimously rejected in Ableman v. Booth the authority of the Wisconsin courts to issue a writ for the release of an abolitionist who had been arrested for violating the federal Fugitive Slave Act. In 1953, the Court reaffirmed the authority of the federal courts over state courts in Brown v. Allen, albeit with its convoluted and much criticized opinions.
Paul Bator, Finality in Criminal Law and Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963)
WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS (1980)
Richard H. Fallon Jr., The Supreme Court, Habeas Corpus, and the War on Terror: As Essay on Law and Political Science, 110 COLUM. L. REV. 352 (2010)
CARY FEDERMAN, THE BODY AND THE STATE: HABEAS CORPUS AND AMERICAN JURISPRUDENCE (2006)
ERIC M. FREEDMAN, HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY (2001)
ANTHONY GREGORY, THE POWER OF HABEAS CORPUS IN AMERICA: FROM THE KING’S PREROGATIVE TO THE WAR ON TERROR (2013)
PAUL D. HALLIDAY, HABEAS CORPUS: FROM ENGLAND TO EMPIRE (2010)
Lee B. Kovarsky, A Constitutional Theory of Habeas Power, 99 Va. L. Rev. 753 (2013)
A Native of Virginia, Observations upon the Proposed Plan of Federal Government, reprinted in 9 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 655 (John P. Kaminski & Gaspare J. Saldino, eds., 1984)
Saikrishna Bangalore Prakash, The Great Suspender’s Unconstitutional Suspension of the Great Writ, 3 ALB. GOV’T L. REV. 575 (2010)
Martin H. Redish & Colleen McNamara, Habeas Cor-pus, Due Process and the Suspension Clause: A Study in the Foundations of American Constitutionalism, 96 VA. L. REV. 1361 (2010)
Ronald D. Rotunda, The Detainee Cases of 2004 and 2006 and Their Aftermath, 57 SYRACUSE L. REV. 1 (2006)
Stephen J. Vladeck, The Suspension Clause as a Structural Right, 62 U. MIAMI L. REV. 275 (2008)
Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)
Ableman v. Booth, 62 U.S. (21 How.) 506 (1859)
Ex parte Merryman, 17 F. Cas. 144 (C.C. Md. 1861) (No. 9487)
Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869)
Brown v. Allen, 344 U.S. 443 (1953)
Fay v. Noia, 372 U.S. 391 (1963)
Sanders v. United States, 373 U.S. 1 (1963)
Townsend v. Sain, 372 U.S. 293 (1963)
Stone v. Powell, 428 U.S. 465 (1976)
Wainwright v. Sykes, 433 U.S. 72 (1977)
INS v. Enrico St. Cyr, 533 U.S. 289 (2001)
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007)
Munaf v. Geren, 553 U.S. 674 (2008)
Boumediene v. Bush, 553 U.S. 723 (2008)
Muka v. Baker, 559 F.3d 480 (6th Cir. 2009)
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)
Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010)
Luna v. Holder, 637 F.3d 85 (2d Cir. 2011)