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Habeas Corpus as a Power Implied by the Suspension Clause
Andrew Hyman

Article I, Section 9, Clause 2 of the Constitution says: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."  Many authors have observed that this clause is phrased negatively, rather than affirmatively guaranteeing either the privilege or guaranteeing a congressional power to suspend the privilege.  The question is: why was it phrased negatively?  The answer says a lot about how Congress can regulate the writ, and what the Clause means.

Back in 2013, this blog highlighted an article by Professor Lee Kovarskyon this subject, and so you might consider this blog post as a late response.  I agree with Professor Kovarsky, and others, that there is something fishy in the notion that the writ of habeas corpus never would have taken hold in the federal courts but for the affirmative guarantee of the writ in Section Fourteen of the Judiciary Act of 1789.  There is a big problem with that notion, despite its noble lineage tracing back at least to Chief Justice Marshall's opinion in Ex Parte Bollman (1807), and echoed by Justice Story’s opinion in Prigg v. Pennsylvania (1842).  First of all, it is problematic to suggest that part of the 1789 statute essentially became unrepealable immediately upon passage, and that future congresses became bound to obey the First Congress to some extent, and bound to obey any prior congresses that expanded the writ.   It may be possible to read Marshall and Story in a way that avoids these problems, but it’s not easy.  More recently, the Supreme Court has apparently abandoned the notion that Congress must establish the writ before it can be judicially implemented; prior to the case of Boumediene v. Bush (2008), Congress had never (as far as I know) extended the writ to aliens abroad, although it had established a procedure for executive branch review of their status.  Whatever else may have been messed up about the Boumediene decision, I think its recognition of an implied constitutional privilege of habeas corpus was correct. 

Incidentally, I like this quote from Justice Johnson’s dissent in Bollman: “Strange indeed would be the doctrine that an inadvertency once committed by a court shall ever after impose on it the necessity of persisting in its error. A case that cannot be tested by principle is not law, and in a thousand instances have such cases been declared so by courts of justice.”  If the Court in that case was suggesting that Congress can bind future congresses to a particular vision of habeas corpus, then that was surely an inadvertent error.

Despite my agreement with Professor Kovarsky about the impact of Section 14 of the Judiciary Act, I doubt that he is correct that power to issue the writ of habeas corpus is an inherent Article III power that would exist regardless of the Suspension Clause.  In my view, that theory opens a big can of worms, and raises many unnecessary questions.  What other writs would likewise be inherent in judicial power?  Why did so many state constitutions in the 1780s explicitly and affirmatively provide for the writ if it was considered just as inherent as the power of a judge to silence outbursts in court?

I suspect that federal judges probably do have some constitutional power to issue the writ of habeas corpus even absent federal statutory authority, based not upon a nebulous doctrine of inherent powers, but rather based upon the direct implications of the Suspension Clause.  The Suspension Clause is likewise the source of an implied power of Congress to suspend the writ under the named conditions. 

The power implied by the Suspension Clause for federal judges to issue writs of habeas corpus has limits, of course.  But the power is clearly implied because the absence of it would have suspended the writ; the writ had previously existed for all people arrested in the United States, and denial of the writ would have suspended it.  The limits upon an implied power of habeas corpus must include these: (1) the prisoner or someone acting in his behalf has to request the writ; (2) the prisoner is in federal custody within the geographic jurisdiction of the federal court; (3) Congress has not validly suspended the writ; (4) the prisoner has not already obtained the full benefit of the writ with regard to his current imprisonment; (5) neither congress nor the judiciary have assigned the task of issuing the writ to other judges instead, such as federal appeals court judges or state court judges having concurrent jurisdiction; and (6) any further reasonable regulations by Congress are followed in keeping with the common law right as understood in 1789.  All of these limitations upon the writ were very likely considered essential in 1789, both before and after the Judiciary Act was passed.  If all the pertinent limitations are satisfied, then a refusal by a federal district court judge to grant the writ would be tantamount to a suspension of habeas corpus in violation of Article I, Section 9, Clause 2 − even without a word about habeas corpus in federal statutes.

True, the Suspension Clause is located in Article I rather than Article III.  However, that is likely because everyone already recognized that issuance of the writ is a judicial function, whereas power to suspend the writ might otherwise have been more plausibly claimed by the President than by Congress.

A draft of the Suspension Clause expressly and affirmatively guaranteed the writ: "The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the Legislature except upon the most urgent and pressing occasions...."  Several state ratifying conventions later suggested similar language.  There are a slew of reasons why those proposals did not succeed, and none of the following reasons indicate that action by Congress was considered necessary for the writ to exist.  First, an affirmative guarantee was considered unnecessary and superfluous.  Second, placing such affirmative language in Article I would have suggested that some action by the legislative branch might be needed not just to suspend the writ but also to initiate and maintain it.  Third, an affirmative constitutional guarantee of the writ could have jeopardized at least some of the six limitations listed above regarding implied judicial power.  And, fourth, an affirmative constitutional guarantee of the writ, such as the draft provision quoted above, would have suggested that the writ only has to be available in federal court, whereas framers like Roger Sherman anticipated that, “the constitution does not make it necessary that any inferior tribunals should be instituted, but it may be done if found necessary; 'tis probable that courts of particular states will be authorized by the laws of the union, as has heretofore been done in cases of piracy, &c….” 

Incidentally, Professor Kovarsky has a new article that came out in April of last year, discussing the impact of the Privileges or Immunities Clause upon the writ of habeas corpus, following adoption of the Fourteenth Amendment in 1868.  As with his theory about inherent judicial power to grant the writ under the original Constitution of the 1780s, I think this new theory is interesting but not well-supported by the text and original meaning.  But that’s another story.