Justice Alito's Opinion in Dep't of Homeland Security v. Thuraissigiam Reveals Why "Custody" in the Narrow Sense Should Not Be a Requirement for Habeas

by Michael C. Dorf

There is much that's wrong with Justice Alito's majority opinion for the Court in Dep't of Homeland Security v. Thuraissigiam, but I want to begin by acknowledging that there's something basically right about Thuraissigiam: Justice Alito is right that the writ of habeas corpus is typically said to be available only as a means of challenging custody. The disagreement in Thuraissigiam concerns the question of what counts as a challenge to custody. I want to suggest here that the defects in Justice Alito's opinion illustrate a flaw in our familiar way of talking about habeas as a means of challenging unlawful detention. Habeas has long been and should be broader than that. It is a means of challenging substantial restraints on liberty, which include detention but also other kinds of government action.

Thuraissigiam is a Sri Lankan national who crossed into the US from Mexico without authorizing documents and was apprehended by border patrol 25 yards north of the border. He sought asylum but was found to lack a credible fear of persecution. He brought a habeas petition to challenge that determination, but a federal statute strips the courts of habeas jurisdiction to review an administrative rejection of a credible fear claim. Thuraissigiam argued that the statute works an unconstitutional suspension of habeas corpus. The Ninth Circuit agreed. So did two justices--Sotomayor and Kagan--but they were in dissent. Another two justices--Breyer and Ginsburg--thought that the elimination of jurisdiction as applied to Turaissigiam was permissible because he was merely challenging factual findings, so he had no underlying due process claim. The majority ruled against Thuraissigiam on the much broader ground that he was not challenging his "custody," which is often said to be a prerequisite for habeas. Justice Alito wrote: "While respondent does not claim an entitlement to release, the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka."

Well, what's wrong with that? Quite a lot actually. As the concurrence in the judgment by Justice Breyer suggests, the majority's analysis would imply that there is no constitutional right to habeas of anyone to challenge an order of removal--not even a permanent resident and maybe not even a US citizen! Suppose Congress stripped the federal courts of jurisdiction to hear appeals, by way of habeas or any other mechanism, of all deportation and removal proceedings. Now suppose that the Trump administration decided to start deporting enemies of the people like US citizen John Oliver. Would it be an answer to Oliver's complaint that "the Government is happy to release him—provided the release occurs in the cabin of a plane bound for England" (or anywhere else outside the US)?

Of course not. And that's why, as Justice Sotomayor explains in dissent, for over a century, SCOTUS case law has treated removal proceedings as cognizable on habeas. The key modern case is the 2001 decision in INS v. St. Cyr. Surveying the history of habeas, Justice Stevens concluded for the Court that there was a sufficiently good argument that under the original understanding of the Suspension Clause, habeas was available to challenge executive determinations to deport an alien--in that particular case a permanent resident. Thus, while holding open the possibility that the Suspension Clause now extends beyond its original understanding, the St. Cyr Court said that even with a narrower historical focus, there were sufficient doubts about the validity of the jurisdiction-stripping provision if construed to cover habeas to invoke the canon of constitutional avoidance and leave habeas available.

Justice Alito's treatment of St. Cyr in the majority opinion is practically a non sequitur. He says: "The writ of habeas corpus as it existed at common law provided a vehicle to challenge all manner of detention by government officials, and the Court had held long before that the writ could be invoked by aliens already in the country who were held in custody pending deportation." The first half of that sentence sounds like it supports Turaissigiam's claim, while the second half fails to come to grips with the way in which the logic of the majority's holding--you're not challenging detention if you're seeking to stay in the country because the government would be happy to release you outside the country--totally undercuts the use of habeas by anyone challenging deportation/removal, whether that anyone is a new arrival like Turaissigiam, a longtime resident alien, or even a citizen.

There is a further problem with Justice Alito's opinion: its thoroughgoing and wrongheaded originalism. In both St. Cyr and Boumediene v. Bush, the Supreme Court said that the Suspension Clause protects a right to habeas that is "at the absolute minimum" as expansive as the scope of habeas in 1789, leaving open the possibility of further expansion. Justice Alito's opinion (1) finds that the scope in 1789 does not benefit Thuraissigiam and (2) does not go beyond that minimum. Both steps are problematic.

(1) Much of the disagreement between Justices Alito and Sotomayor looks like a debate over "clearly established law" for purposes of overcoming qualified immunity or the characterization of a "new rule" for purposes of unavailability in the context of habeas as a collateral remedy for state prisoners. Justice Alito says that Thuraissigiam's lawyers failed to produce any cases from the relevant period that are sufficiently like his to serve as precedent; Justice Sotomayor responds that an exactly analogous case is unnecessary. I agree with Justice Sotomayor on this point, but that's not just because I take a broader view of precedent than the Court does in those other contexts too. It's also because Justice Alito's argument should fail on its own premises. Originalism--its champions have been telling us for a quarter century or more now--seeks the original public meaning of the constitutional text. The absence of an exactly analogous or even somewhat analogous case might have some bearing on the expectations or intentions of the framing generation, although then again it might not, but it certainly would not limit the application of the constitutional text to new or even unanticipated circumstances. Here as in many other contexts, originalists talk the original-public-meaning talk when defending originalism against theoretical critique but walk the concrete-intentions-and-expectations walk when it comes time to decide cases.

Perhaps the best that can be said for Justice Alito's application of the wrong kind of originalism is that there's a precedent for it in Boumediene, where much of the disagreement between Justice Kennedy's majority opinion and Justice Scalia's dissent concerned how to apply pre-1789 English decisions. But Justice Kennedy's Boumediene opinion pretty clearly rejected the approach Justice Alito takes in Thuraissigiam. The absence of an exact precedent (one way or the other) Justice Kennedy said, provides a reason for further analysis by reference to the purpose of habeas. Thus, I agree with Prof Josh Blackman that Thuraissigiam is inconsistent with Boumediene.

(2) Meanwhile, Justice Alito makes quite a lot out of what he deems a concession in Thuraissigiam's brief. Justice Alito writes that he need not consider the possibility of evolution, because Thuraissigiam "agrees that 'there is no reason' to consider whether the Clause extends any further." Justice Alito is quoting a footnote in Thuraissigiam's brief, which reads in full: 

To the extent the government is asking the Court to decide whether the scope of the Clause has expanded since 1789 – an issue the Court has been “careful” to reserve, Boumediene, 553 U.S. at 746 – there is no reason to do so here. The Clause as the Court has interpreted it, and the writ as it existed in 1789, guarantee review in this case.

If that was a concession by Thuraissigiam, it was an unwise one, but I think the footnote should have been more charitably read as telling the Court that Thuraissigiam should win even under a narrow historical view of the Suspension Clause while not agreeing to accept defeat should the Court read the narrow history differently. In any event, the Court certainly had the power to consider whether Thuraissigiam should win on an evolutionary theory if he lost on an original-understanding theory; an ambiguous concession in a footnote of a brief should not have been decisive.

I'll conclude in the way that I began--by expressing some sympathy for Justice Alito's view. He's right that Thuraissigiam isn't really challenging his custody. But that ought to lead him and the rest of the Court to question the familiar idea that the Great Writ is all about challenging custody. It's broader than that. Habeas has been used to challenge substantial restraints on liberty. Holding people captive restrains their liberty, but so do a great many other things that we wouldn't ordinarily classify as "custody." For example, habeas is commonly available to challenge the death penalty. More to the present point, surely it is a substantial restraint on one's liberty to be removed from the United States.