Is Suspension a Political Question?

Abstract

This article tackles a question heretofore virtually ignored by scholars and yet to be resolved by the Supreme Court - the justiciability of the Suspension Clause. Following the devastating attacks of September 11, the suspension power is no longer the exclusive province of academic debate. In the wake of those attacks, the Bush Administration apparently asked Congress to suspend the writ of habeas corpus to aid efforts aimed at combating terrorism. Now, five years later, this country is waging a War on Terrorism of indefinite duration and recent counterterrorism legislation has been argued by some to constitute a suspension of the Great Writ. Regardless of whether this legislation is in fact a suspension, the potential for additional terrorist attacks on American soil is unfortunately all too real, and there is good reason to believe that another attack would be met with a clear invocation of the suspension power by Congress. Accordingly, whether the judiciary could review the lawfulness of any such suspension could well be one of the most important legal issues to arise out of the War on Terrorism.

In the Supreme Court's recent Hamdi v. Rumsfeld decision, Justice Scalia suggested that the judiciary could not review an exercise of the suspension authority to ensure that Congress had not acted inconsistently with the conditions that the Constitution places on invocation of the suspension authority. (By its very terms, the Suspension Clause requires that there be an "Invasion" or "Rebellion" before Congress may suspend the writ.) This article disputes the conventional wisdom that suspension presents a nonjusticiable political question as reflected in Justice Scalia's Hamdi opinion as well as earlier suggestions to the same effect made by other jurists. The article explores why this view is misguided, highlighting the fact that it can not be reconciled with the purpose of the Suspension Clause, the separation of powers, and the core function of the institution of judicial review. Most principally, the article contends that resolving the justiciability of suspension turns on the purpose and history of the Great Writ as well as how it fits within our broader constitutional scheme. The historic link between the Great Writ and core due process safeguards leads inevitably to the conclusion that the internal predicates required for a valid suspension are inextricably intertwined with the core due process right and, just as protection of the latter has always been understood to fall within the core of the judicial role, the same must hold true for protection of the former. The unique status of the writ as a constitutional remedy and limitations on Congress's ability to compel courts to resolve cases in contravention of the Constitution likewise demonstrate that suspension is not a political question. Ultimately, 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.

Keywords: suspension, habeas corpus, political question, judicial review, due process, war powers