46 Pages Posted: 14 Dec 2005
Although the executive detention of individuals outside the criminal justice system implicates the historical core of the writ of habeas corpus, there persists in this area a remarkable amount of disagreement over the nature of habeas corpus and its place in our constitutional system. This phenomenon is especially evident in Hamdi v. Rumsfeld, the 2003 Supreme Court case involving a challenge to the executive branch's detention, without charge, of a U.S. citizen alleged to be an enemy combatant. The case divided the Court, producing four opinions in all. Two of those opinions - a plurality by Justice O'Connor and a dissent by Justice Scalia - are particularly intriguing, especially when read against one another. Although both opinions adopted positions substantially favoring the alleged enemy combatant, they did so in radically different ways, reflecting starkly opposed visions of habeas corpus and the Suspension Clause, and, more deeply, the nature of the separation of powers in our constitutional system.
This article takes up those differences. In particular, I aim to show that although Justice Scalia's dissent has been widely hailed as the most liberty-protective of all the Hamdi opinions, in fact it could, if adopted more broadly, pose a serious threat to the safeguards of liberty built into the law of habeas corpus and the Constitution itself. According to Justice Scalia, the government's only options with respect to U.S. citizen detainees are to charge them criminally, release them, or convince Congress to suspend habeas corpus. The problem, I argue, lies with the suggestion in the third of these options that suspending the writ is necessary and sufficient to authorize otherwise-unlawful detention. I contend that this view is both formally untenable and functionally undesirable. Formally speaking, suspending the writ simply removes a judicial remedy. It does not authorize any executive action that was not already permitted; unlawful detention remains unlawful even after the writ is suspended. Functionally speaking, Justice Scalia's approach requires one branch of government (the judiciary) to be read out of the equation in order for another (the executive) to act. But that is contrary to the basic principle of checks and balances established by the constitutional separation of powers.
In contrast, Justice O'Connor's approach preserves a role for all three branches even in times of national security crisis. On one hand, by permitting Congress to authorize the executive branch to engage in extraordinary executive detention, Justice O'Connor embraced a process-based, institutionally oriented approach in the tradition of Justice Jackson's famous concurrence in the Steel Seizure Case. That is, Justice O'Connor adopted a judicial approach that privileges, and largely defers to, the joint action of the legislative and executive branches. On the other hand, Justice O'Connor also preserved for the courts a vital role in ensuring that the executive's use of the authority conferred by Congress comports both with the scope of the statutory grant and with basic constitutional demands. In this respect, her approach combines a general focus on second-order questions of institutional process with an attentiveness to at least some basic, first-order constitutional values. This approach, I argue, is most consistent with the three-branch structure of the Constitution.
Keywords: habeas corpus, suspension, enemy combatant, detention, separation of powers, Youngstown
Suggested Citation: Suggested Citation
Morrison, Trevor W., Hamdi's Habeas Puzzle: Suspension as Authorization?. Cornell Law Review, Vol. 91, January 2006; Cornell Legal Studies Research Paper No. 05-036. Available at SSRN: https://ssrn.com/abstract=869438