Tuesday, August 28, 2007

Habeas Corpus and the Bears in Yellowstone

In my latest FindLaw column, I highlight some of the most egregious sins of Alberto Gonzales, including an extended discussion of his claim, in testimony before the Senate Judiciary Committee in January, that the Suspension Clause does not protect a right of habeas corpus; it only says that Congress can't suspend it. As I note in the column, ludicrous as this sounds, it's the position staked out by Justice Scalia (for himself, Rehnquist and Thomas) in INS v. St. Cyr. In the column, I explain why a Supreme Court dissent is not exactly good authority for an Attorney General professing to say what the law is (as opposed to what his administration thinks it ought to be). Here I want to see if any sense can be made of the Scalia view.

I'll begin by putting aside Scalia's historical and doctrinal arguments (except to say that I think he overreads Ex Parte Bollman). The textual argument (made by both Scalia and Gonzales) strikes me as especially weak. Although it is logically correct to say that a prohibition on suspending something doesn't guarantee that that something must exist, it certainly is a common sense inference that if X can't be suspended, X must therefore exist.

So let's turn to the normative argument. Scalia says:

It is no more irrational to guard against the common and well known "suspension" abuse, without guaranteeing any particular habeas right that enjoys immunity from suspension, than it is, in the Equal Protection Clause, to guard against unequal application of the laws, without guaranteeing any particular law which enjoys that protection. And it is no more acceptable for this Court to write a habeas law, in order that the Suspension Clause might have some effect, than it would be for this Court to write other laws, in order that the Equal Protection Clause might have some effect.
The analogy Scalia draws to equal protection doesn't work. It is perfectly understandable for members of group X (women, say) to feel wronged when members of group Y (men, say) get some benefit that they are denied, even if the X's would not be injured by the denial of the benefit to everybody. That is simply what we mean when we ascribe normative content to equality.

But is it ever the case that people are worse off when some benefit (I don't say "right" to avoid begging the question) is denied to them temporarily than they would be if it were to be denied to them permanently? I suppose we can imagine that people might become "addicted" to the benefit if it were granted, then taken away, then re-granted, and so forth, so that they'd be better off never receiving the benefit. So if the American people were like the bears in Yellowstone National Park and habeas corpus were like food, Scalia could say that a temporary suspension is worse than a permanent abolition because in the latter case we don't come to depend on habeas, only to have it snatched away. This is a ridiculous analogy, however, and Scalia does not make it at this level. Instead, he simply asserts that protection against suspension is like the requirement of equal protection, even though it plainly is not.

Moreover, there is a further, to my mind independently fatal, difficulty with the Gonzales/Scalia view that Congress can "permanently" abolish habeas (for some class of cases) without implicating the Suspension Clause: As I say in the column, there is no such thing as "permanent" legislation. Congress can "permanently" abolish habeas one day, and then "permanently" restore it the next. So the answer to the question of whether any sense can be made of the Gonzales/Scalia view is no.

12 comments:

Craig J. Albert said...

I would have thought that the courts possess an inherent power under the common law to issue prerogative writs; that in the case of habeas the writ is addressed to the executive; that the suspension clause is in Article I because the executive would lack the authority to simply override the writ, and therefore the only branch that conceivably could limit the use of the writ is the legislative; and that the political bargain was to give the power of suspension to the legislature only in specified times, the implication being that it's available at all other times. Am I missing something?

egarber said...
This comment has been removed by the author.
egarber said...

I have a few questions.

1. In Hamdi, Scalia wrote in his dissent that there were only two basic options for detainment: Hamdi must be tried under criminal law, or Congress must suspend HC.

Trying to reconcile this with the case Mike cites, does this mean that Scalia believes the only reason suspension is an option is that Congress itself wrote a previous HC law? In other words, if hypothetically there were no statutory HC protections, would Scalia likely have said something like, "HC doesn't apply here, because it literally doesn't exist unless Congress passes a law saying it does"?

If so, that is very f*cked up, at least for anybody concerned with the specific grievances and natural rights influence during the founding era.

2. Did Gonzales ever say that he thought the Executive itself has unilateral authority to suspend HC (regardless of its standing)? It seems to me that given the track record here -- when backed into a corner the administration often says it has inherent power to do what it wants in any case -- the administration is merely patronizing us when it pretends to respect congressional authority.

Michael C. Dorf said...

In response to Eric:

1) Yes, I think the logical implication of Scalia's view in St. Cyr is that an alternative to suspending habeas for a citizen is to "permanently" repeal the habeas statute.

2) Gonzales did not, to my knowledge, say that the President has inherent authority to suspend habeas, but he did defend the administration's position that w/r/t the Gitmo detainees, there was no statutory or constitutional limit on the President's power.

egarber said...

I'm sure there's some flaw with this analogy but let me throw it out there:

Take the Fifth Amendment --

nor be deprived of life, liberty, or property, without due process of law

Just looking at the text, it seems to me that this is basically constructed the same way the HC clause is -- where something can't be suspended or deprived, unless there is some other enabling event (invasion or due process).

Would Scalia defend the idea that "liberty" only exists to the extent Congress defines it through statute? Notwithstanding Mike's strong point that the "permanent" vs. "temporary" distinction is just made up nonsense, what if Congress said, "hey, we'll declare permanently that there are no liberties -- that way, we can ignore these supposed fifth amendment protections?"

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