Suspension and the Extrajudicial Constitution Trevor W

Cornell Law Library Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications 11-1-2007 Suspension and the Extrajudicial Constitution Trevor W. Morrison Cornell Law School, [email protected] Follow this and additional works at: http://scholarship.law.cornell.edu/lsrp_papers Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the Criminal Law Commons Recommended Citation Morrison, Trevor W., "Suspension and the Extrajudicial Constitution" (2007). Cornell Law Faculty Publications. Paper 88. http://scholarship.law.cornell.edu/lsrp_papers/88 This Article is brought to you for free and open access by Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL. 107 NOVEMBER 2007 NO. 7 ARTICLE SUSPENSION AND THE EXTRAJUDICIAL CONSTITUTION Trevor W Morrison* What happens when Congress suspends the writ of habeas corpus? Eve- ryone agrees that suspending habeas makes that particular-andparticu- larly important-judicialremedy unavailable to those the government de- tains. But does suspension also affect the underlying legality of the detention? That is, in addition to making the habeas remedy unavailable, does suspension convert an otherwise unlawful detention into a lawful one? Some, includingJustice Scalia in the 2004 case Hamdi v. Rumsfeld and Professor David Shapiro in an important recent article, answer yes. This Article answers no. I previously offered that same answer in a symposium essay; this Article develops the position more fully. Drawing on previously unexamined historical evidence, the first half of the Article shows that treating suspension of the writ as legalizing detention is at odds with the dominant historical understanding in both England and the United States. According to that understanding,suspension affects neither the legality of detention nor the availability of post-detention remedies (like money dam- ages)for unlawful detention. Suspension of the writ, post-detention liability, and legality are distinct questions. My aims go beyond providing a positive account of suspension, how- ever. In the second half of the Article, I examine a set of broader issues that my account of suspension raises but that the current literaturealmost entirely overlooks. The core question here is this: If suspension does not equal legali- zation, what are the roles and obligations of the legislative and executive branches when the writ is validly suspended? I suggest ways to think about those branches' independent obligation to uphold and enforce the Constitution duringperiods of suspension, especially with regard to constitutional norms that might seem to be associated exclusively with the courts. In that respect, the Article uses suspension as a window into larger issues re- * Visiting Associate Professor, New York University School of Law; Associate Professor, Cornell Law School. For helpful comments on earlier drafts, I thank Kevin Clermont, Michael Doff, David Dyzenhaus, Richard Fallon, David Franklin, Phil Frickey, Toby Heytens, Bob Hockett, Vicki Jackson, Olati Johnson, Marty Lederman, Serena Mayeri, Dan Meltzer, Bernie Meyler, Gerry Neuman, Jide Nzelibe, Cristina Rodriguez, Steve Vladeck, and participants in the Constitutional and Legal Theory Colloquium at the University of Texas (especially Mitch Berman and Mark Greenberg) and in faculty workshops at the law schools of Seton Hall and Temple Universities. Thanks also to the librarians of the Cornell Law Library for doggedly tracking down some hard-to-find sources, to John Althouse Cohen for excellent research assistance, and to the editors of the Columbia Law Review for their patient and thoughtful work. 1533 HeinOnline -- 107 Colum. L. Rev. 1533 2007 1534 COLUMBIA LAW REVIEW [Vol. 107:1533 garding the theory and mechanics of constitutional interpretationand implementation outside the courts. INTrRODUCTION .................................................. 1535 I. SUSPENSION (AND IMMUNITY) IN ENGLAND ................. 1543 A. Suspension Acts ...................................... 1544 B. Indem nity Acts ....................................... 1548 II. SUSPENSION (AND IMMUNITY) IN THE UNITED STAT ES ................................................. 1552 A. The Founding ....................................... 1553 B. Nineteenth Century Congressional Debates ........... 1557 1. During the Burr Conspiracy ...................... 1557 2. During the Civil W ar ............................. 1558 3. During Early Reconstruction ..................... 1560 C. Civil War Era Suspension and Indemnity Acts, and Cases Construing Them .............................. 1562 D. Post-Civil War Suspensions ........................... 1568 E. Early Scholarly Commentary ......................... 1571 III. RECAPITULATION AND ELABORATION: THE DISTINCTNESS OF SUSPENSION, IMMUNITY, AND LEGALITY ............................................... 1575 IV. FRAMING THE EXTRAJUDICIAL CONSTITUTION ..... 1579 V. SUSPENSION, IMMUNITY, AND CONGRESSIONAL CH O ICE ................................................ 1582 A. Constitutional Remedies for Unconstitutional Detention: General Principles ....................... 1584 1. The Suspension Clause ........................... 1584 2. The Marbuy Dictum ............................. 1586 3. Constitutional Structure .......................... 1587 B. Judicial Review ....................................... 1590 C. Immunity and Congressional Choice ................. 1595 1. The M itchell Standard ............................ 1595 2. Existing Detention Authority ..................... 1596 3. Comparative Institutional Competence ........... 1598 4. Information Sensitivity ........................... 1599 5. Risk of Abuse .................................... 1600 6. Comparative Remedial Efficacy ................... 1601 VI. SUSPENSION AND EXECUTIVE BRANCH CONSTITUTIONAL IMPLEMENTATION ................ 1602 A. Operative Propositions, Decision Rules, and Executive Im plem entation ...................................... 1603 B. Due Process During Suspension ...................... 1609 C onclusion ..................................................... 1615 HeinOnline -- 107 Colum. L. Rev. 1534 2007 20071 SUSPENSION AND THE EXTRAJUDICIAL CONSTITUTION 1535 INTRODUCTION Often described as the Constitution's "emergency provision,"1 the Suspension Clause instructs that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or In- vasion the public Safety may require it.' 2 But what, exactly, does the Clause contemplate in the event of an emergency? By its terms, it estab- lishes that habeas corpus may not be suspended except in certain circumstances. 3 Suppose those circumstances exist, and suppose further that Congress enacts legislation validly suspending the writ. 4 What follows? Part of the answer is clear enough. As used in the Suspension Clause, "the writ of habeas corpus" refers to habeas corpus ad subjiciendum,5 whose "great object ... is the liberation of those who may be imprisoned without sufficient cause."6 Although often associated today with collat- eral review of criminal convictions and sentences, at its "historical core" the writ is concerned with executive detention outside the judicial sys- tem,7 and with providing a means of ordering the detainee's release if the 1. See, e.g., Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029, 1041 (2004) (calling Suspension Clause "a rudimentary emergency provision"); David Cole, The Priority of Morality: The Emergency Constitution's Blind Spot, 113 Yale L.J. 1753, 1796 (2004) (calling it "the Constitution's only explicit 'emergency' provision"); Amanda L. Tyler, Is Suspension a Political Question?, 59 Stan. L. Rev. 333, 334 (2006) (calling it "one of the few express 'emergency' provisions in our Constitution"); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J., concurring) (calling it the only "express provision for exercise of extraordinary authority because of a crisis"). But see Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 Yale L.J. 149, 151-54 (2004) (discussing other constitutional provisions, including the First Militia Clause, art. I, § 8, cl. 15, as important sources of emergency power). 2. U.S. Const. art. I, § 9, cl. 2. 3. The Suspension Clause addresses the suspension of the "Privilege of the Writ of Habeas Corpus," not the writ itself. As the Supreme Court has explained, "The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it." Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130-31 (1866). But "suspending the writ" and "suspending habeas" are common shorthands for suspending the privilege of the writ, and I will use them here. For discussion of one short-lived attempt to assign a different meaning to "privilege," see infra text accompanying notes 194-206. 4. The Suspension Clause does not specify which branch or branches of government have the power to suspend the writ. The dominant view is that this power belongs to Congress. See Trevor W. Morrison, Hamdi's Habeas Puzzle: Suspension as Authorization?, 91 Cornell L. Rev. 411,

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