INTRODUCTION I. THE HISTORY AND MEANING OF SUSPENSION II. THE CONVENTIONAL WISDOM ON THE JUSTICIABILITY OF SUSPENSION III. JUDICIAL TREATMENT OF "POLITICAL QUESTIONS". A. Defining Political Questions B. Questioning the Political Question Doctrine IV. MAKING THE AFFIRMATIVE CASE FOR JUDICIAL ENFORCEMENT OF LIMITATIONS ON THE SUSPENSION POWER A. Of the Link Between the Great Writ and Core Due Process Safeguards B. Of Remedy-Stripping and Klein Problems C. In the Background: The State Courts V. THE COURTS AND WAR POWERS CASES MORE GENERALLY VI. THE NEXT QUESTIONS: THE EFFECTS OF A VALID SUSPENSION AND HOW COURTS SHOULD SCRUTINIZE EXERCISES OF THE SUSPENSION POWER CONCLUSION INTRODUCTION
Of late, several scholars have contended that the political question doctrine is heading toward its demise. (1) Paraphrasing Mark Twain, one might say that rumors of the doctrine's death are much exaggerated. Notwithstanding what these scholars have viewed as the Supreme Court's proclivity for "control[ling] all things constitutional," (2) three members of the Court recently suggested that the political question doctrine remains very much alive and well. These Justices may have breathed new life into the doctrine, particularly as they argued that it shields from judicial review certain tools available to the political branches in waging this country's ongoing war on terrorism.
The suggestion came in Hamdi v. Rumsfeld, (3) a case in which the Court addressed whether the government may detain an American citizen (possibly indefinitely) outside of the judicial process, as the government claimed the right to do. (4) The Suspension Clause of the Constitution lurked prominently in the background of Hamdi; indeed, Justice Scalia, joined by Justice Stevens, opined in dissent that the Clause rendered Hamdi's detention unlawful and dictated his immediate release. (5) Justice Scalia further suggested that if Congress had suspended the writ of habeas corpus following the September 11 attacks, the judiciary could not have reviewed the constitutionality of such an act.
The Suspension Clause is one of the few express "emergency" provisions in our Constitution. It provides: "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." (6) What precisely the Clause protects from suspension has invited to date scarce judicial discussion and authoritative guidance. Instead, this issue has for the most part been debated among legal scholars. (7) But assuming, as most do, that the Clause protects some core habeas writ in the absence of a valid suspension, when and how the writ may be suspended takes on great importance.
Post-September 11, debating the suspension power is no longer the exclusive province of academics. Following the devastating September 11 attacks, the Bush Administration apparently asked Congress to suspend the writ of habeas corpus in some fashion. (8) Five years later, this country is waging a war on terrorism of indefinite duration. The potential for additional terrorist attacks on American soil is unfortunately all too real, (9) and there is good reason to believe that another attack would be met with invocation of the suspension power by Congress. Accordingly, whether the judiciary could review the lawfulness of any such suspension could be one of the most important legal issues to arise out of the war on terrorism.
Imagine, for example, that Congress suspends the writ of habeas corpus with respect to "all known or suspected terrorists" or individuals of a particular ethnicity or religious affiliation. Could the judiciary review the constitutionality of the suspension or, to use the terminology of Baker v. Carr, (10) would such a case present a nonjusticiable "political question"? What if Congress suspends the writ nationwide to address a localized "Rebellion" or suspends the writ to address an "Invasion" of illegal immigrants? How one answers these questions matters a great deal, if for no other reason than once suspension is executed lawfully, the courts are effectively shuttered and "the Government is entirely free from judicial oversight." (11)
In Hamdi, Justice Scalia suggested that the courts could not review an exercise of the suspension power to ensure that it followed from lawful premises. (12) In a separate opinion, Justice Thomas registered his strong agreement with the proposition. (13) These Justices were not writing on a blank slate in addressing this issue. Indeed, several prominent early jurists offered similar views on this question, starting with Chief Justice John Marshall, (14) the author of the Court's maiden discussion of the political question doctrine, (15) as well as Justice Story (16) and Chief Justice Taney. (17)
Given the conventional view that suspension presents a nonjusticiable political question, one might be inclined to accept the matter as settled. This would be a mistake. Further scrutiny is warranted for several reasons. To begin, there is no settled authority on the justiciability of suspension, and the handful of jurists who have expressed an opinion on the question have done so cursorily, offering little more than an institutional hunch as a basis for their conclusions. In fact, to date, no jurist or scholar has explored this matter in any detail. Here, I seek to fill that void and make a case for why the conventional wisdom is mistaken and suspension should be not be viewed as a political question.
By its very terms, the Suspension Clause requires that there be an "Invasion" or "Rebellion" before Congress may suspend the writ. Congress's suspension power also is limited by external constitutional restraints, such as the Fifth Amendment's Due Process Clause and likely its equal protection component. (18) An argument that suspension is a nonjusticiable political question would lead to the result that suspension is a matter on which the Constitution imposes such restraints, but that many, if not all, of those restraints are not subject to judicial enforcement. This conclusion should be rejected because it is at odds with the Great Writ's heritage and place in our constitutional structure and because it would have troubling ramifications for the separation of powers and the institution of judicial review.
As background, Part I begins with an exploration of the ongoing debate over the meaning of the Suspension Clause and a review of historical exercises of the suspension authority in this country. Part II consults the Constitutional Convention and ratification debates as well as prior commentary to ascertain what has been said to date with respect to the justiciability of suspension. Part III begins the analysis of whether suspension should be viewed as nonjusticiable by reviewing the existing debate over the political question doctrine to see what guidance may be had from the Supreme Court's decisions in this area (19) as well as the academic literature. (20) In exploring the various models that have been proposed for defining the doctrine or rejecting it wholesale, however, it quickly becomes apparent that they advance our inquiry only so far. Although the academic debate raises many of the larger separation of powers concerns that must animate the analysis, ultimately seeking to determine the justiciability of suspension by referencing these models only highlights many of their larger failings. Part III concludes, according-y, by arguing that resolving the justiciability of suspension instead requires narrowing our focus to the purpose and history of the Great Writ as well as how it fits within our broader constitutional scheme.
Part IV therefore explores the relationship between the Suspension Clause and other constitutional safeguards as well as the unique status of the writ of habeas corpus as a constitutional remedy, concluding that these inquiries demonstrate why suspension should not be viewed as a political question. As it came to this country from England, the Great Writ offers the judicial remedy of discharge to those deprived of their liberty without any--much less due-process. Where the Executive detains someone without affording that party an impartial forum to test the lawfulness of the detention, this act unquestionably constitutes a deprivation of liberty without due process. Indeed, the historic link forged between the habeas remedy and the realization of the most fundamental of due process guarantees is so strong that in the absence of a Suspension Clause the very same remedy likely still would be mandated by the Constitution. Thus, a suspension predicated on invalid grounds must be understood to violate the core ideals of due process. That is, the internal predicates required for a valid suspension (the existence of a "Rebellion or Invasion") are inextricably intertwined with the core due process right to seek impartial review of the Executive's justification for a prisoner's detention. This relationship, in turn, has important ramifications for the justiciability analysis. To the extent that a suspension is predicated on invalid premises (the absence of a "Rebellion or Invasion"), an individual subject to the Due Process Clause's protections and held extrajudicially will have a viable due process claim to press in the courts. In such a case, if a court declined to consider granting the writ, it would go beyond merely assigning political question status to the Suspension Clause's internal limitations. By leaving the prisoner's due process claim unprotected, the court would assign it the same status as well. And this simply cannot be squared with our constitutional tradition, which places protection of due process rights at the heart of the judicial role.
In addition, special problems are presented where Congress improperly withdraws the Great Writ--the only meaningful judicial remedy for unconstitutional deprivations of liberty. Strictly speaking, suspension itself does...