State habeas relief for federal extrajudicial detainees

Minnesota Law Review

Volumn 92, Issue 2, 2007, Pages 265-322

  Pettyst, Todd E ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 38949186000     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (467)

1. Marc Sandalow & Carolyn Lochhead, President Asks Congress for Sweeping War Powers, S.F. CHRON., Sept. 14, 2001, at A1 ("President Bush declared winning the war on terrorism the central focus of his presidency yesterday as his administration laid the groundwork for a sweeping military campaign.").
2. Charles Babington & Jonathan Weisman, Senate Approves Detainee Bill Backed by Bush; Constitutional Challenges Predicted, WASH. POST, Sept. 29, 2006, at A1 ("Hundreds of . . . detainees have been held for several years without trial at the U.S. military base at Guantanamo Bay, Cuba, while others were held at secret prisons overseas.");
3. Carl Tobias, Editorial, Overreaching on "Enemy Combatants," BALT. SUN, Jan. 1, 2006, at A15, available at 2006 WLNR 107922 (stating that, for several years, the federal government held Jose Padilla, a U.S. citizen, at a navy brig in South Carolina without charging him with any crime).
4. See WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 12-63 (1980) (discussing the evolution of the writ at English common law from a restrictive instrument compelling appearance to a device for securing a person's release from unlawful confinement);
5. see also Stone v. Powell, 428 U.S. 465, 474 n.6 (1976) ("It is now well established that the phrase 'habeas corpus' used alone refers to the common-law writ of habeas corpus ad subjiciendum, known as the 'Great Writ."'
6. (quoting Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95 (1807))).
7. See, e.g., Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2764-69 (2006) (holding that § 1005(e)(1) of the Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2742 (2005), which purported to strip the federal courts of power to entertain habeas petitions filed by persons held at the Guantanamo Naval Base in Cuba, did not apply to petitions pending at the time of the statute's enactment);
8. id. at 2786-98 (holding that a system of military commissions established to try detainees at Guantanamo Bay violated the Uniform Code of Military Justice and various Geneva Conventions);
9. Hamdi v. Rumsfeld, 542 U.S. 507, 516-39 (2004) (O'Connor, J., plurality opinion) (finding that citizens may be held as "enemy combatants" but must be given an opportunity to contest that designation before an impartial tribunal);
10. Rasul v. Bush, 542 U.S. 466, 473-84 (2004) (holding that, when an alien is not a citizen of a country with whom the United States is at war, and that alien is extrajudicially held within the United States' territorial jurisdiction, a federal district court can adjudicate the alien's habeas petition so long as it has jurisdiction over the alien's custodian);
11. Rumsfeld v. Padilla, 542 U.S. 426, 434-42 (2004) (holding that, when a citizen is detained by American armed forces and desires habeas relief, he or she must file the petition in a district having jurisdiction over the petitioner's immediate custodian, not with the Secretary of Defense);
12. Al-Marri v. Wright, 487 F.3d 160, 174-95 (4th Cir. 2007) (holding that it is unconstitutional for the President and the military to indefinitely detain, without trial, alien civilians who have lawfully entered the United States)
13. reh'g en banc granted, No. 06-7427 (4th Cir. Aug. 22, 2007).
14. See, e.g., Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified in scattered sections of 10, 18, 28, 42 U.S.C.) (establishing a system of military commissions and declaring that no court shall have jurisdiction over a habeas petition filed by an alien detainee who has been properly detained by the United States as an "enemy combatant");
15. Al-Marri, 487 F. 3d at 166-73 (stating in dictum that the jurisdiction-stripping provision of the Military Commissions Act of 2006 might be unconstitutional, but holding that the provision did not apply in the case at hand because there had been no determination by the United States that the President's detention of Al-Marri as an "enemy combatant" was "proper");
16. Boumediene v. Bush, 476 F.3d 981, 988-94 (D.C. Cir.) (holding that the jurisdiction-stripping provision of the Military Commissions Act of 2006 does not violate the Constitution)
17. cert, granted, 127 S. Ct. 3078 (2007);
18. Janet Cooper Alexander, Jurisdiction-Stripping in the War on Terrorism, 2 STAN. J. C.R. & C.L. 259, 260-67 (2006) (examining the jurisdiction-stripping provisions of recent antiterrorism legislation).
19. 62 U.S. (21 How.) 506, 516 (1859) (holding that state courts lack jurisdiction to hear the habeas petition of a person convicted of a federal crime).
20. 80 U.S. (13 Wall.) 397, 411-12 (1872) (holding that state courts lack jurisdiction to issue a writ of habeas corpus for the discharge of a person in federal custody).
21. See LARRY W. YACKLE, FEDERAL COURTS 134-35 (2d ed. 2003) (explaining that, under Ableman and Tarble's Case, state courts cannot issue "habeas corpus relief to prisoners in the custody of federal officers"
22. (citing Ableman, 62 U.S. (21 How.) at 516;
23. Tarble's Case, 80 U.S. (13 Wall.) at 397)).
24. See DUKER, supra note 3, at 154-55 (arguing that the supremacy of the Federal Constitution should not prohibit state court judges from hearing the habeas petitions of federal prisoners because state court judges, like federal judges, must support the Constitution);
25. YACKLE, supra note 8, at 135-36 (arguing that the Tarble Court ignored "the conventional understanding that Congress might never have created the lower federal courts and might have relied, instead, on state courts to police the system");
26. Michael G. Collins, Article III Cases, State Court Duties, and the Madisonian Compromise, 1995 WIS. L. REV. 39, 101-02 (noting that if the Tarble Court correctly held that the Constitution forbade state court jurisdiction in habeas cases involving federal prisoners and Congress had not created the lower federal courts, there would be no forum for federal prisoners to seek redress for illegal detention).
27. Gerald L. Neuman, The Habeas Corpus Suspension Clause After INS v. St. Cyr, 33 COLUM. HUM. RTS. L. REV. 555, 597 (2002).
28. DUKER, supra note 3, at 155.
29. E.g., Commonwealth v. Downes, 41 Mass. (24 Pick.) 227, 227 (1836);
30. State v. Dimick, 12 N.H. 194, 196 (1841);
31. United States v. Wyngall, 5 Hill 16, 18 (N.Y. Sup. Ct. 1843);
32. Commonwealth ex rel. Webster v. Fox, 7 Pa. 336, 337-38 (1847).
33. See 1 JULIUS GOEBEL, JR., HISTORY OF THE SUPREME COURT OF THE UNITED STATES: ANTECEDENTS AND BEGINNINGS TO 1801, at 457-508 (1971) (detailing the passage of the Judiciary Act of 1789 and making no mention of debates on whether to make federal jurisdiction over habeas cases exclusive);
34. WILFRED J. RITZ, REWRITING THE HISTORY OF THE FEDERAL JUDICIARY ACT OF 1789 passim (1990) (same).
35. See DUKER, supra note 3, at 135 ("[T]he debates in the federal and state conventions, the location of the habeas clause, and the contemporary commentary support the thesis that the habeas clause was designed to restrict Congressional power to suspend state habeas for federal prisoners.").
36. Ableman v. Booth, 62 U.S. (21 How.) 506, 510 (1859).
37. Tarble's Case, 80 U.S. (13 Wall.) 397, 410-11 (1872).
38. Downes, 41 Mass. (24 Pick.) at 227;
39. Dimick, 12 N.H. at 196;
40. Wyngall, 5 Hill at 18;
41. Fox, 7 Pa. at 337-38;
42. ROLLLN C. HURD, A TREATISE ON THE RIGHT OF PERSONAL LIBERTY AND ON THE WRIT OF HABEAS CORPUS 166 (Albany, W.C. Little & Co. 1858).
43. E.g., State v. Brearly, 5 N.J.L. 639, 643-44 (N.J. 1819);
44. Olmsted's Case, Brightly 9, 15 (Pa. Ct. Nisi Prius 1809).
45. Tarble's Case, 80 U.S. (13 Wall.) at 411.
46. Id.
47. See Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82 (authorizing federal courts and judges to award habeas relief to federal prisoners "for the purpose of an inquiry into the cause of commitment"). The 1789 Act did not authorize federal courts to grant habeas relief to state prisoners.
48. See Ex parte Dorr, 44 U.S. (3 How.) 103, 105 (1845). Congress lifted that limitation in the wake of the Civil War.
49. See Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385, 385-86.
50. See In re Stacy, 10 Johns. 328, 333 (N.Y. Sup. Ct. 1813) (arguing that the state court has an "indispensable duty" to protect the liberty of its citizens from illegal confinement);
51. In re Bryan, 60 N.C. (Win.) 1, 28 (1863) (stating that a state has no higher duty than "protecting all her citizens in the full and free enjoyment of life, liberty, and private property").
52. See Marc M. Arkin, The Ghost at the Banquet: Slavery, Federalism, and Habeas Corpus for State Prisoners, 70 TUL. L. REV. 1, 7 (1995) ("At the very beginning of the nineteenth century, most state courts continued to draw their authority to issue the writ from their common-law powers which preceded independence.");
53. Dallin H. Oaks, Habeas Corpus in the States-1776-1865, 32 U. CHI. L. REV. 243, 251-55 (1965) (describing early state courts' common-law and statutory habeas powers).
54. See Todd E. Pettys, Competing for the People's Affection: Federalism's Forgotten Marketplace, 56 VAND. L. REV. 329, 349 (2003) (stating that, in the nation's first decades, "responsibility for securing the public good [fell] primarily on the states' shoulders").
55. See ROBERT H. WLEBE, THE OPENING OF AMERICAN SOCIETY: FROM THE ADOPTION OF THE CONSTITUTION TO THE EVE OF DISUNION 354 (1984) ("[Americans'] firm loyalties began at home and extended from the community through its surrounding area no farther than the state, the most distant unit that actually fed their enterprises and influenced their local environments.");
56. Todd E. Pettys, Our Anticompetitive Patriotism, 39 U.C. DAVIS L. REV. 1353, 1383 (2006) ("In the early and mid[-] 1800s, the federal government struck the smallest of profiles in citizens' daily lives . . . .").
57. MELINDA LAWSON, PATRIOT FIRES: FORGING A NEW AMERICAN NATIONALISM IN THE CIVIL WAR NORTH 10 (2002).
58. See JACKSON TURNER MAIN, THE ANTIFEDERALISTS: CRITICS OF THE CONSTITUTION 1781-1788, at 255-56 (1961) (noting that many agreed to support the Constitution only when promised that the new national government's powers would be reined in by a series of amendments);
59. DAVID J. SIEMERS, THE ANTIFEDERALISTS: MEN OF GREAT FAITH AND FORBEARANCE 223-25 (2003) (explaining that, although the Antifederalists ultimately accepted the Constitution, they worked hard to ensure that the national government's powers remained limited).
60. 2 AM. L.J. 192 (Md. Dist. Ct. 1809).
61. Id. at 192-93.
62. Id. at 193-94.
63. Id. at 193.
64. Id. at 195-96. The two cases to which Chief Judge Nicholson referred are unreported.
65. Id. at 193.
66. Id. at 195;
67. accord Commonwealth v. Murray, 4 Binn. 487, 492 (Pa. 1812) (Tilghman, C.J.) (voting to deny relief to a seventeen-year-old boy seeking release from the navy, because, inter alia, boys under the age of twentyone not only could be of great service to their country, but also could benefit from acquiring "practical knowledge of sea affairs").
68. Brightly 9 (Pa. Ct. Nisi Prius 1809).
69. Id. at 19-20.
70. Id.
71. Id. at 11, 20.
72. Id. at 12, 18, 20. Sergeant and Waters were the daughters of David Rittenhouse, Pennsylvania's treasurer. The state had placed the funds in Rittenhouse's hands for safekeeping. After Rittenhouse died, the funds passed to Sergeant and Waters, his heirs, and the administrators of his estate.
73. Id. at 20.
74. Id. at 11.
75. Id. at 14.
76. Id.
77. Id.
78. Id. at 15.
79. Id.
80. Id. at 19.
81. In re Ferguson, 9 Johns. 239, 239 (N.Y. Sup. Ct. 1812). This was not the first time that the New York Supreme Court of Judicature was confronted with such a petition.
82. In In re Husted, 1 Johns. Cas. 136, 136 (N.Y. Sup. Ct. 1799), the court issued elliptical opinions revealing little in the way of facts and reasoning. Two justices (including then Justice Kent) voted against granting habeas relief on the merits; two justices would have granted habeas relief; and one justice concluded (on unstated grounds) that the court lacked jurisdiction.
83. See id.
84. In re Ferguson, 9 Johns, at 242.
85. Id. at 240.
86. Id. at 241-42 (Thompson, J., concurring).
87. Id. at 242 (Spencer, Van Ness, & Yates, JJ., concurring).
88. In re Stacy, 10 Johns. 328, 329 (N.Y. Sup. Ct. 1813).
89. Id. at 329-30.
90. Id. at 330.
91. Id. at 334.
92. Id.
93. 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 375-76 (New York, O. Halsted 1826) (noting the uncertainty expressed in Ferguson and the subsequent taking of jurisdiction in In re Stacy, and asserting that "[t]he question was, therefore, settled in favor of a concurrent jurisdiction in [In re Stacy], and there has been a similar decision by the courts of other states");
94. see also Oaks, supra note 23, at 275 (stating that, with the exception of Chief Justice Kent's opinion in In re Stacy, "state court opinions and judgments seem to have been unanimous in favor of" state courts' jurisdiction over habeas petitions filed by persons in federal custody).
95. Cf. HURD, supra note 17, at 166 ("It may be considered settled that state courts may grant the writ in all cases of illegal confinement under the authority of the United States.").
96. In re Merritt, 5 AM. L.J. 497, 501 (S.C 1814) (Nott, J.). Bounty officers working for the army had handed Ephraim Merritt money as payment for his enlistment, but Merritt promptly threw the money on the floor.
97. Id. at 499. The bounty officers argued that Merritt had held the money in his hands just long enough to constitute agreement to enlist.
98. Id.
99. See Commonwealth v. Harrison, 11 Mass. (10 Tyng) 63, 63-66 (1814). The court stressed that it had the authority "to inquire into the circumstances, under which any person brought before them by writ of habeas corpus is confined or restrained of his liberty."
100. Id. at 65.
101. Commonwealth v. Cushing, 11 Mass. (10 Tyng) 67, 70-71 (1814).
102. State v. Brearly, 5 N.J.L. 639, 643 (1819).
103. Commonwealth v. Gamble, 11 Serg. & Rawle 93 (Pa. 1824).
104. In re Carlton, 7 Cow. 471, 471 (N.Y. Sup. Ct. 1827).
105. Commonwealth v. Downes, 41 Mass. (24 Pick.) 227, 231-32 (1836).
106. State v. Dimick, 12 N.H. 194, 197 (1841). The court stressed that it did not "make any difference that the illegal imprisonment, if there be one, is by an officer of the U.S. army. The courts of the United States have no exclu-
107. sive Jurisdiction over those officers." Id. at 197. On the merits, however, the court rejected the petition, finding that the soldier had ratified his enlistment contract by remaining in the army after reaching the age of twenty-one.
108. Id. at 199.
109. United States v. Wyngall, 5 Hill 16, 17-27 (N.Y. Sup. Ct. 1843) (concluding that noncitizens could enter valid enlistment contracts, and rejecting the petition on the merits).
110. Commonwealth ex rel. Webster v. Fox, 7 Pa. 336, 337-40 (1847).
111. See In re Reynolds, 20 F. Cas. 592, 596 (N.D.N.Y. 1867) (No. 11,721) (stating that such cases were common and that there is no evidence "that any officer of the United States ever disregarded a discharge made by a state court or judge, on the ground that it was utterly void" for lack of jurisdiction).
112. See HURD, supra note 17, at 201 ("A sovereign state has a right to be informed why any of her citizens are imprisoned, simply because it is her duty to set them free from all illegal imprisonment.").
113. In re Stacy, 10 Johns. 328, 333 (N.Y. Sup. Ct. 1813);
114. accord In re Bryan, 60 N.C. (2 Win.) 1, 28-31 (1863) (Battle, J.) (declaring that a state has no higher obligation "than that of protecting all her citizens" from unlawful restraint, even when held by persons acting under federal authority).
115. Webster, 7 Pa. at 338.
116. See, e.g., Olmsted's Case, Brightly 9, 15 (Pa. Ct. Nisi Prius 1809) (cautioning that state courts must be "deeply sensible of the necessity of exercising [their power to release federal prisoners] with the greatest discretion").
117. See, e.g., Commonwealth ex rel. M'Lain v. Wright, 3 Grant 437, 444 (Pa. 1863). Under the Judiciary Act of 1789, the Supreme Court had the power to review the final judgment of a state's highest court if, inter alia, the state court declared invalid a federal statute, a federal treaty, or "an authority exercised under the United States." Act of Sept. 24, 1789, ch. 20, § 25, 1 Stat. 73, 85. Consequently, if a state court determined that federal officials behaved unlawfully and thus ordered a federal detainee released, the Supreme Court could review the state court's ruling and, if necessary, reverse.
118. See David E. Engdahl, Federal Question Jurisdiction Under the 1789 Judiciary Act, 14 OKLA. CLTY U. L. REV. 521, 531 n.52 (1989). The 1789 Act also gave the Supreme Court jurisdiction to review the final judgment of a state's highest court if the state court rejected a federal claim of "title, right, privilege or exemption." § 25, 1 Stat. at 85-86. That statute would appear to have given the Court the power to review a state court's ruling on a habeas petition if the state court rejected a prisoner's claim that his or her detention violated federal law. Without elaboration, however, at least one modern-day commentator has rejected that reading of the 1789 Act.
119. Engdahl, supra, at 531 n.52 ("The Judiciary Act failed to provide for any federal court review if the state court denied [a federal prisoner's habeas] petition."). The confusion appears to be traceable to a decision rendered in 1813 by Chief Justice William Tilghman, of the Pennsylvania Supreme Court. In that case, Chief Justice Tilghman stated in dictum: "[I]t seems to be the general opinion, that from a decision on a habeas corpus, no appeal or writ of error lies; and, thus, points of vital importance to the United States, may be determined by state judges, without an opportunity of revision."
120. In re Lockington, 5 AM. L.J. 92, 96 (1813). (Note that Chief Justice Tilghman would foreclose Supreme Court jurisdiction in all habeas cases arising out of the state courts, not merely those cases in which state courts rejected claims of federally unlawful detention.) Almost twenty years later, a commentator cited Chief Justice Tilghman's opinion as the lone authority for the same proposition.
121. See THOMAS SERGEANT, CONSTITUTIONAL LAW 287 (Philadelphia, P.H. Nicklin & T. Johnson 1830). Another nineteenth-century commentator, in turn, cited Sergeant's treatise mid-century as the lone authority for the same proposition.
122. See HURD, supra note 17, at 165. Closing the loop, Sergeant was the lone authority cited by Engdahl in 1989.
123. Engdahl, supra, at 531 n.52. Chief Justice Tilghman, whose assertion seems plainly in tension with the language of the 1789 Act, almost certainly sent these scholars down the wrong track. Section 25 of the 1789 Act-the principal section governing the Supreme Court's appellate jurisdiction-was not substantially changed until 1914.
124. See Act of Dec. 23, 1914, ch. 2, 38 Stat. 790 Obroadening the Supreme Court's appellate jurisdiction);
125. JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 400.06[3] (2d ed. 1995) (discussing the 1914 Act).
126. See generally REYNOLDS ROBERTSON & FRANCIS R. KIRKHAM, JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES 851-55 (1936) (describing the amendments to the 1789 Act). As explained below, the Supreme Court began taking jurisdiction of states' habeas cases long before the substantive changes of 1914.
127. See infra notes 87-110, 129-66 and accompanying text (discussing Ableman v. Booth, 62 U.S. (21 How.) 506 (1859), and Tarble's Case, 80 U.S. (13 Wall.) 397 (1872)). Of course, even if there was uncertainty about whether Congress had actually given the Court the power to review state courts' habeas rulings, no one doubted that Congress could confer such appellate jurisdiction if it so desired.
128. See, e.g., In re Bryan, 60 N.C. at 30-31 ("A jurisdiction so essential to the great privilege of going where one may please - a privilege which every citizen of the State would wish to enjoy as freely as the air he breathed - the State courts would hardly have parted with, except upon the most urgent necessity.").
129. State v. Brearly, 5 N.J.L. 639, 643-44 (1819);
130. accord Olmsted's Case, Brightly at 14-15 (stating that the Constitution "leaves to the several states absolute supremacy in all cases in which it is not yielded to the United States" and that no source of law suggests that states surrendered their power to grant habeas relief to persons in federal custody).
131. Exparte Pool, 4 Va. (2 Va. Cas.) 276, 278 (1821) (emphasis added).
132. Commonwealth ex rel. Webster v. Fox, 7 Pa. 336, 340 (1847).
133. In re Sims, 61 Mass. (7 Cush.) 285, 309 (1851). The court conceded, however, that "it is manifest that this ought to be done only in a clear case, and in a case where it is necessary to the security of personal liberty from illegal restraint."
134. Id. In the case before it, concerning a fugitive slave who had been taken into federal custody, the court declined to take jurisdiction, stating that "it is quite competent for the judges of the United States courts to bring the petitioner before them by habeas corpus."
135. Id.
136. See Collier's Case.-Jurisdiction of Federal and State Courts, 6 Op. Att'y Gen. 103 (1853).
137. Id. at 104.
138. Id.
139. Id.
140. Id.
141. Id. at 105.
142. Id. at 108.
143. In re Booth, 3 Wis. 1, 2-4 (1854) (Smith, J.), rev'd, 62 U.S. (21 How.) 506 (1859);
144. see Act of Sept. 18, 1850, ch. 60, §§ 6-10, 9 Stat. 462, 463-65 (establishing a system for the capture and return of fugitive slaves), repealed by Act of June 28, 1864, ch. 166, 13 Stat. 200. For an excellent discussion of Booth's life and legal battles-from his rise to prominence as an abolitionist, to his litigation in the Wisconsin and federal courts, to his fall from grace for alleged sexual intimacies with a young girl
145. -see FREDERICK J. BLUE, NO TAINT OF COMPROMISE: CRUSADERS IN ANTISLAVERY POLITICS 117-37 (2005).
146. For a discussion of state officials' resistance to the 1850 Act, see ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 175-91 (1975).
147. In re Booth, 3 Wis. at 7-8 (Smith, J.).
148. Id. at 47-49;
149. see aiso id. at 36-37 (concluding that the U.S. Supreme Court erred when it struck down a Pennsylvania law aimed at protecting fugitive slaves in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842)).
150. In Prigg, the Court held that Pennsylvania's slave-shielding law violated the Constitution's Fugitive Slave Clause. See Prigg, 41 U.S. (16 Pet.) at 625-26;
151. see also U.S. CONST. art. IV ("No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall... be discharged from such Service or Labor, but shall be delivered up on Claim of the Party to whom such Service or Labor may be due.").
152. In re Booth, 3 Wis. at 35 (Smith, J.).
153. Id. at 23 (Smith, J.).
154. Id. at 58-66 (Whiton, C.J.).
155. Id. at 52-57 (Smith, J.).
156. Id. at 55-57 (Smith, J.).
157. Ableman v. Booth, 62 U.S. (21 How.) 506, 509-10 (1859).
158. Id. at 510.
159. Id.
160. In re Booth & Rycraft, 3 Wis. 157, 175-218 (1854) (Whiton, C.J.).
161. Id. at 176 (Whiton, C.J.).
162. Id. (Whiton, C.J.).
163. Id. at 204 (Smith, J.).
164. Id. at 217 (Smith, J.).
165. Ableman v. Booth, 62 U.S. (21 How.) 506, 512 (1859). A newspaper reporter wrote in 1904 that, at the time of the Wisconsin Supreme Court's actions, the fledgling Republican Party in Wisconsin had adopted John C. Calhoun as their exemplar, they "only differed with Jeff[erson] Davis as to the doctrine of state rights in that he was too conservative," and they often viewed federal officials as people with "horns and hoofs and a full Mephistophelion [sic] equipment." Sherman Booth's Trial Recalled, JANESVILLE GAZETTE (Wis.), Sept. 22, 1904, at 2 (on file with author).
166. Ableman, 62 U.S. (21 How.) at 506-15.
167. Id. at 513-14.
168. Id. at 514.
169. See supra notes 28-78 and accompanying text (discussing these cases).
170. Ableman, 62 U.S. (21 How.) at 524-25.
171. Id. at 516.
172. Id. at 523. During the lame-duck period following his failed reelection bid for the presidency in 1860, President James Buchanan pardoned Booth for his actions. Sherman Booth's Trial Recalled, supra note 103.
173. Ex parte Hill, 38 Ala. 429, 437 (1863) (Walker, C.J.).
174. See In re Spangler, 11 Mich. 298, 304 (1863) (Martin, C.J.) (stating that state courts lack jurisdiction to proceed once they have determined that a petitioner is being held under federal authority);
175. id. at 310 (Manning, J.) (concluding that state and federal courts each have exclusive jurisdiction in habeas cases involving their own prisoners, such that state courts cannot grant habeas relief to federal prisoners and federal courts cannot grant habeas relief to state prisoners).
176. See, e.g., Lanahan v. Birge, 30 Conn. 438, 438-49 (1862) (adjudicating the habeas claim of a minor seeking release from military service); Wantlan v. White, 19 Ind. 470, 472-73 (1862) (granting habeas relief to a minor seeking release from military service);
177. Ex parte Anderson, 16 Iowa 595, 598-99 (1864) (holding that state courts have the power to order minors released from invalid enlistment contracts, but declining to grant Anderson's petition because he had been arrested for desertion and was "awaiting his trial before a court martial"); McConologue's Case, 107 Mass. 154, 160-70 (1871) (granting habeas relief to a minor seeking release from military service);
178. Ex parte Hill, 5 Nev. 154, 158 (1869) ("[Ableman held] that in every case where process, regular on its face, has been issued from a court of the United States having power to issue process of such a nature, the officer acting thereunder is fully protected against any interference from a State court . . . .");
179. In re Disinger, 12 Ohio St. 256, 257-63 (1861) (adjudicating the habeas claim of a minor seeking release from military service);
180. Shirk's Case, 3 Grant 460, 461-64 (Pa. 1863) (holding that state courts generally "have power to discharge, on habeas corpus, minors who are held to service under invalid contracts of enlistment," but declining to grant Shirk's petition because federal judicial processes were underway);
181. Commonwealth ex rel. Bressler v. Gane, 3 Grant 447, 456-57 (Pa. 1863) (narrowly construing Ableman as holding only "that when a person is held to appear and answer before a United States court, or when a person has been convicted before a court of the United States . . . , the judgment cannot be reviewed and revised by a State court");
182. Mann v. Parke, 57 Va. (16 Gratt.) 443, 452 (1864) (granting habeas relief to a person seeking release from the Confederate army on the grounds of a statutory exemption);
183. In re Gregg, 15 Wis. 479, 479-81 (1862) (adjudicating the habeas claim of a minor seeking release from military service).
184. See, e.g., Mims v. Wimberly, 33 Ga. 587, 596 (1863) ("[I]t must be borne in mind that the question of imprisonment, by authority other than judicial, was not in that case.");
185. McConologue's Case, 107 Mass. at 167 ("[In Ableman,] no question arose . . . of the effect, as against a writ of habeas corpus from a state court, of the detention of a citizen by a mere executive officer, civil or military, of the United States, without color of judicial process or proceeding of any kind.").
186. See, e.g., In re Bryan, 60 N.C. (Win.) 1, 23-24 (1863) (Pearson, C.J.);
187. Commonwealth ex rel. M'Lain v. Wright, 3 Grant 437, 440 (Pa. 1863) (stating that, if Chief Justice Taney meant to deny state courts the power to grant habeas relief to all persons held in federal custody, "he meant more than the case called for, and all beyond is mere obiter dictum").
188. M'Lain, 3 Grant at 442.
189. Id. at 444;
190. accord Bressler, 3 Grant at 455 ("[T]he right of State courts to try the legality of the imprisonment under color of authority of the United States . . . has been exercised almost daily by the State courts within the last two years . . . .").
191. Exparte Holman, 28 Iowa 88, 175 (1869) (Beck, J., dissenting).
192. In re Reynolds, 20 F. Cas. 592, 595-96 (N.D.N.Y. 1867) (No. 11,721).
193. Id. at 604.
194. See Duty of District Attorneys, 10 Op. Att'y Gen. 146, 146 (1861).
195. Id.
196. Id. Due to the frequency with which such cases arose, however, Bates observed that it might be wise for the district attorney to attend the hearings and ensure that the applicants were entitled to release.
197. Id.
198. See Gormley's Case-Habeas Corpus, 12 Op. Att'y Gen. 258, 259-60 (1867).
199. Id. at 273-74.
200. See id. at 275 (stating that, if a state court ordered Gormley released, federal officials could determine at that time whether it would be "expedient to carry the question to the Supreme Court of the United States for final decision").
201. Id. at 274 (instructing navy officials to produce Gormley's body in compliance with the state court's order).
202. Id. at 275.
203. In re Tarble, 25 Wis. 390, 391 (1870)
204. rev'd, 80 U.S. (13 Wall.) 397 (1872).
205. Id. at 392.
206. Id.
207. Id.
208. Id.
209. Id.
210. Id. at 394;
211. see supra notes 28-78 and accompanying text (discussing these cases).
212. In re Tarble, 25 Wis. at 394.
213. Id. at 412.
214. Id. at 413.
215. See, e.g., Lanahan v. Birge, 30 Conn. 438, 438-49 (1862) (construing Ableman narrowly);
216. see supra notes 113-18 and accompanying text (discussing these cases).
217. In re Tarble, 25 Wis. at 394-95 (alluding to Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)).
218. Id. at 407.
219. See id. Justice Paine was not alone in casting Ableman in this unflattering light. In Ex parte Holman, 28 Iowa 88 (1869), Judge Joseph Beck wrote that Ableman "was decided when the institution of slavery controlled this gov-ernment" and was just one part of a larger federal effort "to nationalize and propagate the institution."
220. Id. at 141 (Beck, J., dissenting). He predicted that Ableman would be overruled and stated that he was not aware of any legal principle that required him to obey it.
221. Id. at 148-49.
222. See generally COVER, supra note 87, at 187 n.* (suggesting that the Court in Tarble's Case was forced to reiterate the principles it declared in Ableman v. Booth because some state judges believed "the unambiguous language [in Ableman] could not be trusted because of its intimate connection with slavery").
223. See, e.g., Lanahan, 30 Conn, at 438-49 (construing Ableman narrowly);
224. see supra notes 113-18 and accompanying text (discussing these cases).
225. See In re Tarble, 25 Wis. at 395-96, 403 (noting the importance attached by other state courts to the question of federal judicial process).
226. Id. at 396-400.
227. Id. at 402.
228. Id. at 396-400, 403, 407-08.
229. Id. at 408 (emphasis added).
230. Id. at 407 (stating that the Wisconsin court's actions were, "in truth, contrary to the entire current of authority").
231. Id. at 403.
232. Id. at 404.
233. Id. at 412-13 (affirming the county commissioner's grant of habeas relief). Chief Justice Luther Dixon filed a one-sentence dissent, concluding "that jurisdiction of the writ of habeas corpus, in cases of this nature, is vested exclusively in the courts of the United States."
234. Id. at 413 (Dixon, C.J., dissenting).
235. Tarble's Case, 80 U.S. (13 Wall.) 397, 402 (1872).
236. Ableman v. Booth, 62 U.S. (21 How.) 506, 516 (1859) (using comparable reasoning).
237. Tarble's Case, 80 U.S. (13 Wall.) at 406.
238. Id. at 408 (citing U.S. CONST, art. I, § 8).
239. Id. at 409.
240. Id. at 411;
241. see also Act of Sept. 24, 1789, ch. 20., § 14, 1 Stat. 73, 81-82 (granting federal jurisdiction over habeas claims brought by federal prisoners).
242. Tarble's Case, 80 U.S. (13 Wall.) at 411.
243. Id. at 409.
244. Id.
245. Id. at 409-10.
246. Id. at 410.
247. M at 411-12.
248. Id. at 412-13 (Chase, C.J., dissenting). Indeed, he found contrary authority in the Suspension Clause.
249. See id. at 413;
250. see also infra notes 226-79 and accompanying text (discussing the Suspension Clause).
251. Tarble's Case, 80 U.S. (13 Wall.) at 412 (Chase, C.J., dissenting).
252. See, e.g., Copenhaver v. Stewart, 24 S.W. 161, 163 (Mo. 1893) ("[I]t must be taken as now well-established law that state courts and the judges thereof have no jurisdiction or power to discharge persons who are held in custody by authority of the federal courts . . . or by officers of the United States acting under the laws thereof . . . .");
253. Commonwealth ex rel. Smith v. Butler, 19 Pa. Super. 626, 634 (Super. Ct. 1902) (stating that "there is now no room for controversy" regarding state courts' power to release unlawfully enlisted minors from federal military obligations). Shortly after Tarble's Case was decided, commentator Rollin Hurd predicted that this would be the states' reaction: However much the weight of state decision may be against the doctrine of the Tarble case, and however much the pride of a state may be offended by being compelled to submit to the imprisonment of its citizens, without power to inquire into the cause of their detention, still the peace and harmony of the whole people require that the state courts should conform their practice to the decision of the Supreme Court of the United States.
254. ROLLIN C HURD, A TREATISE ON THE RIGHT OF PERSONAL LIBERTY AND ON THE WRIT OF HABEAS CORPUS 198 (Leonard W. Levy ed., Da Capo Press 1972) (2d ed. 1876).
255. See, e.g., Charles Warren, Federal and State Court Interference, 43 HARV. L. REV. 345, 353 (1930) (stating that state courts' assertion of jurisdiction over federal prisoners' habeas claims was "an exercise of power entirely incompatible with the constitutional relations of the Federal and State Governments").
256. Seymour D. Thompson, Abuses of the Writ of Habeas Corpus, 18 AM. L. REV. 1, 3-4 (1884).
257. Id. at 5.
258. Cf. DUKER, supra note 3, at 155 ("In recent years [Ableman and Tarble's Case have] gone unquestioned.").
259. Neuman, supra note 10, at 596.
260. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1509 (1987).
261. See YACKLE, supra note 8, at 135-36 ("[The Tarble Court] neglected the conventional understanding that Congress might never have created the lower federal courts and might have relied, instead, on state courts to police the system, subject to appellate review by the Supreme Court.");
262. Collins, supra note 9, at 101-02 (arguing that, if Tarble's Case is understood to rest on a constitutional foundation, it "runs headlong into the traditional understanding that Congress was under no obligation to create lower federal courts");
263. Richard H. Fallon, Jr., The Ideologies of Federal Courts Law, 74 VA. L. REV. 1141, 1205 (1988) ("Tarble's Case, if read literally as founded on propositions of constitutional law, strikes directly at one of the foundation stones of the Federalist model: the proposition that state courts enjoy constitutional parity with federal courts.");
264. Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 YALE L.J, 2195, 2225-26 (2003) (stating that, if Tarble's Case holds "that the Constitution prohibits the States from subjecting federal officials to habeas corpus jurisdiction, . . . [then the case] seems inconsistent with the Madisonian Compromise during the framing of the Constitution, which produced the Article III provision that authorizes, but does not require, Congress to establish lower federal courts");
265. see also U.S. CONST, art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.");
266. ERWIN CHEMERINSKY, FEDERAL JURISDICTION 4 (3d ed. 1999) (discussing the compromise oif leaving it to Congress to decide whether to create inferior federal courts);
267. Wythe Holt, "To Establish Justice": Politics, the Judiciary Act of 1789, and the Invention of the Federal Courts, 1989 DUKE L.J. 1421, 1463 (discussing the acceptance at the Constitutional Convention of the proposal to leave it to Congress to decide whether to create inferior federal courts);
268. Charles Warden, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49, 62 (1923) (discussing the debate within the Senate Special Judiciary Committee of 1789 regarding original jurisdiction in federal courts). Somei scholars believe that, in fact, the Constitution obliged Congress to create lower federal courts with at least limited powers.
269. See generally RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 330-34 (5th ed. 2003) (briefly recounting some of the leading arguments in this ongoing scholarly debate).
270. Moreover, if the rule announced in Ableman and Tarble's Case were constitutionally mandated and state courts were thus powerless to come to the aid of federal prisoners, serious due process problems would arise if Congress chose not to establish any lower federal courts. See Collins, supra note 9, at 102;
271. Martin H. Redish & Curtis E. Woods, Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U. PA. L. REV. 34, 51 (1975);
272. see also U.S. CONST, amend. V ("No person shall be . . . deprived of life, liberty, or property, without due process of law . . . ."). As Waxman and Morrison point out, the possibility of filing an original petition for the writ in the United States Supreme Court might fall short of resolving the due process problem.
273. See Waxman & Morrison, supra note 174, at 2226 n. 130.
274. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82.
275. See, e.g., Amar, supra note 173, at 1510 ("Ableman and Tarble's Case can be justified only if they are understood simply as attributing to Congress a desire for exclusive federal court jurisdiction in habeas proceedings against federal officers."); Collins, supra note 9, at 102-03 ("[I]t is possible to read Tarble . . . not as about constitutionally exclusive jurisdiction, but as merely expressing an implicit congressional preference for federal statutory exclusivity in federal officer habeas cases . . . .");
276. Richard H. Fallon, Jr., Applying the Suspension Clause to Immigration Cases, 98 COLUM. L. REV. 1068, 1074 n.31 (1998) (stating that, while the Court in Tarble's Case appeared to perceive a constitutional basis for its holding, the holding "can be rationalized more plausibly on the ground that federal statutes" implicitly created an exclusive federal remedy for federal prisoners);
277. Nicole A. Gordon & Douglas Gross, Justiciability of Federal Claims in State Court, 59 NOTRE DAME L. REV. 1145, 1174 n.114 (1984) ("Tarble's Case should be read to rest upon an implied congressional intent that habeas actions to release enlisted soldiers from the military be restricted to federal court.");
278. Neuman, supra note 10, at 596 ("[M]odern commentators . . . re-rationalize [Ableman and Tarble's Case] asresting on an implied preemption of state court remedies for federal prisoners by the provision of constitutionally adequate remedies in federal court.");
279. Redish & Woods, supra note 175, at 101 (stating that Tarble's Case establishes a presumption against state-court jurisdiction in habeas cases involving federal prisoners-a presumption that "can be overcome only by a carefully considered, conscious decision by Congress");
280. Margaret G. Stewart, Federalism and Supremacy: Control of State Judicial Decision-Making, 68 CHI.-KENT L. REV. 431, 432 n.7 (1992) (suggesting that a congressional preference for exclusive federal jurisdiction "may explain the result in cases preventing state courts from . . . granting habeas corpus to one in federal custody");
281. Amanda L. Tyler, Is Suspension a Political Question?, 59 STAN. L. REV. 333, 400 (2006) ("[T]he most defensible reading of Tarble's Case is that the Court interpreted Congress's provision for federal court habeas jurisdiction with respect to federal petitioners as impliedly exclusive of state courts.");
282. Waxman & Morrison, supra note 174, at 2227 (arguing that Tarble's Case is best understood as resting upon a determination that "the pertinent statutes reflected an implicit congressional determination that state jurisdiction was not appropriate").
283. Some scholars have argued that the Constitution does bar the states from granting habeas relief to federal prisoners who are confined pursuant to federal judicial process. See, e.g., James S. Liebman & William F. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 COLUM. L. REV. 696, 808-09 & n.535 (1998) (arguing that Article III "creates a constitutional prohibition, evidently beyond Congress's power to alter, against state court interference with or revision of [a] federal court's judgment," but that "Congress could permissibly authorize state courts to determine the legality of federal executive detention, with the absence of any such authorization explaining Tarble's holding (but not its language)").
284. See Tafflin v. Levitt, 493 U.S. 455, 458 (1990) ("Under [our] system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.");
285. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507-08 (1962) ("[E]xclusive federal court jurisdiction over cases arisingunder federal law has been the exception rather than the rule.");
286. Claflin v. Houseman, 93 U.S. 130, 136 (1876) ("[I]f exclusive jurisdiction [over claims arising under federal law] be neither express nor implied, the State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it.");
287. see also THE FEDERALIST No. 82, at 461 (Alexander Hamilton) (Clinton Rossiter ed., 1999) ("When . . . we consider the State governments and the national governments . . . as parts of ONE WHOLE, the inference seems to be conclusive that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.").
288. See Nevada v. Hicks, 533 U.S. 353, 366-67 (2001) ("[T]hat state courts could enforce federal law is presumed by Article III of the Constitution, which leaves to Congress the decision whether to create lower federal courts at all.").
289. Sumner v. Mata, 449 U.S. 539, 549 (1981);
290. see also U.S. CONST, art. VI ("[J]udicial officers . . . of the several states shall be bound by Oath or Affirmation, to support this Constitution.").
291. See 28 U.S.C § 1257(a) (2000) ("Final judgments or decrees rendered by the highest court of a State in which a decision could be had may be reviewed by the Supreme Court . . . .");
292. Tafflin, 493 U.S. at 465 (holding that state courts have concurrent jurisdiction to adjudicate federal civil RICO claims because, inter alia, if state courts handle such claims improperly, the Court can correct the errors on direct review).
293. Tafflin, 493 U.S. at 459.
294. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981).
295. Id.;
296. see also Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 508 (1962) (stating that these principles have "remained unmodified through the years").
297. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 82. The corresponding statute today similarly contains no indication that the federal courts' jurisdiction over federal prisoners' habeas claims is exclusive. See 28 U.S.CA. § 2241 (West 2006 & Supp. 2007) ("Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.").
298. Gulf Offshore Co., 453 U.S. at 479. For example, when Congress granted broad federal-question jurisdiction to the federal courts in 1875, Congress certainly did not strip the state courts of their power to adjudicate federal-question claims.
299. See Act of Mar. 3, 1875, ch. 137, 18 Stat. 470 (codified as amended at 28 U.S.C. § 1331 (2000)).
300. Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 73, 76-77 (emphasis added). Section 9 expressly specifies other classes of exclusive and concurrent jurisdiction, as well. See id.
301. Id. § 11, 1 Stat, at 78-79 (emphasis added).
302. Gulf Offshore Co., 453 U.S. at 478.
303. See GOEBEL, supra note 13, at 457-508;
304. RITZ, supra note 13, passim;
305. Holt, supra note 174, at 1478-1517;
306. Warren, supra note 174, passim.
307. Tafflin v. Levitt, 493 U.S. 455, 461-62 (1990).
308. See id. at 462 ("[E]ven if we could reliably discern what Congress' intent might have been had it considered the question, we are not at liberty to so speculate . . . .").
309. See CHEMERINSKY, supra note 174, at 3-4 (recounting this familiar history).
310. See U.S. CONST, art. Ill, § 1.
311. See RITZ, supra note 13, at 5.
312. See Warren, supra note 174, at 65-66 (providing numerous examples of state courts adjudicating disputes under federal law).
313. Id. at 53;
314. see Holt, supra note 174, at 1485-87, 1496-97 (noting ways in which state courts retained a great deal of power under the 1789 Act).
315. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981). The Court in Tarble's Case itself asserted that such an incompatibility existed, stating that it would undermine the federal government "if its acts could be interfered with and controlled for any period by officers or tribunals of another sovereignty." Tarble's Case, 80 U.S. (13 Wall.) 397, 409 (1872);
316. see id. at 408-09 (discussing the incompatibility between the federal power to raise armies and the ability of state courts to discharge soldiers). In Ableman, the Court also stated that, if the interpretation and enforcement of federal law were left entirely to the state courts, "conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from . . . local influences." Ableman v. Booth, 62 U.S. (21 How.) 506, 517-18 (1859);
317. see also Tafflin v. Levitt, 493 U.S. 455, 465 (1990) (citing this passage for the proposition that, when deciding whether state law has been implicitly preempted in favor of a federal criminal statute, it is appropriate to consider "the need for uniformity and consistency of federal criminal law").
318. 453 U.S. 473 (1981).
319. Id. at 483-84.
320. Moore v. Sims, 442 U.S. 415, 430 (1979);
321. accord Swain v. Pressley, 430 U.S. 372, 383 (1977) (asserting that state courts "must be presumed competent to decide all issues, including constitutional issues, that routinely arise in the trial of criminal cases").
322. Stone v. Powell, 428 U.S. 465, 493-95 (1976).
323. Id. at 493 n.35
324. (quoting Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 509 (1963)).
325. 28 U.S.C. § 2254(d) (2000).
326. The rights the Constitution confers upon a prisoner do not generally depend on whether the prisoner is being held by state or federal officials. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 503-05 (3d ed. 2006) (explaining that nearly all of the Bill of Rights' provisions have been deemed applicable to the states through the Fourteenth Amendment).
327. Cf. supra notes 4-5 and accompanying text (noting some of the difficult issues that the federal courts have adjudicated in recent terrorism-related cases).
328. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981).
329. See Willingham v. Morgan, 395 U.S. 402, 405-06 (1969) (tracing the history of federal-officer removal legislation);
330. FALLON ET AL., supra note 174, at 908-09 & n.8 (same).
331. See Act of Mar. 3, 1887, ch. 373, 24 Stat. 552, 553. Congress enacted a precursor to the 1887 law in 1875.
332. See Act of Mar. 3, 1875, ch. 137, 18 Stat. 470, 470-71 (granting removal jurisdiction in a wide range of cases, so long as the amount in controversy exceeded $500).
333. Act of Aug. 29, 1916, ch. 418, 39 Stat. 619, 669.
334. Act of June 25, 1948, ch. 646, § 1442, 62 Stat. 869, 938.
335. 28 U.S.C § 1441 (2000) (stating that, when the district court's original jurisdiction is founded upon the presence of a federal question in the plaintiff's claims, the action is removable regardless of the place of the defendant's residence, but that diversity cases can only be removed if the defendant is not a citizen of the state in which the action was filed). A case can be removed on federal question grounds under § 1441 only if federal law provides an essential element of the plaintiff's cause of action. Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998).
336. 28 U.S.C. § 1442a (2000).
337. Id. § 1442(a)(1).
338. Willingham v. Morgan, 395 U.S. 402, 407 (1969).
339. Jefferson County v. Acker, 527 U.S. 423, 431 (1999) (quoting Willingham, 395 U.S. at 409).
340. See 28 U.S.C. § 1441(a).
341. See generally Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908) (holding that an action arises under federal law within the meaning of federal jurisdictional legislation "only when the plaintiff's statement of his own cause of action shows that it is based upon those laws").
342. See Jefferson County, 527 U.S. at 431 ("Under the federal [-] officer removal statute, suits against federal officers may be removed despite the non-federal cast of the complaint; the federal question element is met if the defense depends on federal law."); Mesa v. California, 489 U.S. 121, 136 (1989) ("[I]t is the raising of a federal question in the officer's removal petition that constitutes the federal law under which the action . . . arises for Art. III purposes.").
343. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 483-84 (1981).
344. Id. at 483 n.12.
345. See 28 U.S.C. § 1446(a) (2000) (stating that the defendant must provide the federal court "with a copy of all process, pleadings, and orders served upon such defendant");
346. YACKLE, supra note 8, at 138 (noting that removal involves merely the "transfer" of a case from state to federal court).
347. Amar, supra note 173, at 1510;
348. cf. Alexander, supra note 5, at 277 (stating that, while the Constitution and federal law provide the governing law, the writ of habeas corpus provides the cause of action that serves as "the vehicle for getting into court").
349. Pub. L. No. 109-366, § 7, 120 Stat. 2600, 2636 (to be codified at 28 U.S.C. § 2241(e)) (establishing a system of military commissions and declaring that no court shall have jurisdiction over a habeas petition filed by an alien being held by the United States as an "enemy combatant").
350. U.S. CONST, art. I, § 9, cl. 2.
351. Id.
352. Note, Developments in the Law-Federal Habeas Corpus, 83 HARV. L. REV. 1038, 1263 (1970).
353. INS v. St. Cyr, 533 U.S. 289, 301 (2001) (quoting Felker v. Turpin, 518 U.S. 651, 664 (1996)).
354. See Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142, 170 (1970) ("It can scarcely be doubted that the writ protected by the suspension clause is the writ as known to the framers . . . .");
355. David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 NOTRE DAME L. REV. 59, 65 (2006) ("At the very least, the term ['habeas corpus' in the Suspension Clause] appears to carry with it whatever comprised the general understanding of the writ at the time the Suspension Clause was adopted."). Justices Scalia and Thomas disagree, believing that the clause "does not guarantee any content to (or even the existence of) the writ of habeas corpus, but merely provides that the writ shall not (except in cases of rebellion or invasion) be suspended."
356. St. Cyr, 533 U.S. at 337 (Scalia, J., dissenting). They concede, however, that if the clause does serve "as a guarantee of habeas relief," what it guarantees is "the common-law right of habeas corpus, as it was understood when the Constitution was ratified."
357. Id. at 341-42.
358. DUKER, supra note 3, at 135. Duker points out, for example, that Alexander Hamilton assured the people of New York that the "habeas corpus act" would serve as an important safeguard of individual liberties under the new government-an apparent reference to New York's recently enacted habeas statute.
359. See id. at 132-33;
360. THE FEDERALIST NO. 83 (Alexander Hamilton)
361. supra note 179, at 467.
362. See DUKER, supra note 3, at 129.
363. Amar, supra note 173, at 1509. As Professor Amar reads the framers' intentions, "[t]he common law would furnish the cause of action that assured judicial review; the Constitution would furnish the test on the legal merits of confinement."
364. Id. at 1510.
365. Eric M. Freedman, The Suspension Clause in the Ratification Debates, 44 BUFF. L. REV. 451, 458 (1996).
366. Rex A. Collings, Jr., Habeas Corpus for Convicts-Constitutional Right or Legislative Grace?, 40 CAL. L. REV. 335, 345 (1952).
367. DANIEL J. MEADOR, HABEAS CORPUS AND MAGNA CARTA: DUALISM OF POWER AND LIBERTY 33 (1966). Meador writes that political leaders in 1787 had "little reason" to suspect that the Court would one day declare that state courts lacked jurisdiction to award habeas relief to federal detainees.
368. See id.
369. Neuman, supra note 10, at 596.
370. Ableman v. Booth, 62 U.S. (21 How.) 506, 523 (1859) (acknowledging a state court's authority to issue the writ of habeas corpus within its territorial limits, but declaring that once "the State judge or court [is] judicially apprised that the party is in custody under the authority of the United States, they can proceed no further").
371. Tarble's Case, 80 U.S. (13 Wall.) 397, 410-11 (1872).
372. See supra notes 87-110, 129-66 and accompanying text.
373. See supra notes 87-166 and accompanying text.
374. 8 U.S. (4 Cranch) 75 (1807).
375. See id. at 94-95.
376. Id. at 95.
377. See DUKER, supra note 3, at 126 ("Since Ex parte Bollman, it has generally been accepted that the intent of the habeas clause was somehow to guarantee a federal writ of habeas corpus.").
378. U.S. CONST, art. I, § 9, cl. 2.
379. See, e.g., CHEMERINSKY, supra note 174, at 838 ("[F]ederal courts have the authority to review state court criminal convictions pursuant to writs of habeas corpus.").
380. See Collings, supra note 234, at 353. In 1867, Congress gave federal courts the broad power to award habeas relief to all persons held in custody in violation of federal law.
381. See Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385, 38586. Prior to that time, courts generally followed the common-law rule that "a judgment of conviction rendered by a court of general criminal jurisdiction was conclusive proof that confinement was legal. Such a judgment prevented issuance of the writ without more." United States v. Hayman, 342 U.S. 205, 211 (1952);
382. accord Ex parte Watkins, 28 U.S. (3 Pet.) 193, 207 (1830) ("The judgment of the circuit court in a criminal case is of itself evidence of its own legality, and requires for its support no inspection of the indictments on which it is founded."). The 1867 Act changed the law, allowing federal courts to award habeas relief to persons whose criminal convictions had become final.
383. See Felker v. Turpin, 518 U.S. 651, 663 (1996) ("[I]t was not until well into [the twentieth] century that this Court interpreted [the 1867 Act] to allow a final judgment of conviction in a state court to be collaterally attacked on habeas.");
384. see also Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV. 961, 982-85 (1998) (discussing the Court's shift from Ex parte Watkins to the modern era).
385. FALLON ET AL., supra note 174, at 1290;
386. accord Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring) ("The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial.").
387. Neuman, supra note 247, at 1022.
388. MEADOR, supra note 235, at 38.
389. INS v. St. Cyr, 533 U.S. 289, 301 (2001);
390. cf. THE FEDERALIST No. 84 (Alexander Hamilton), supra note 179, at 480 (praising the writ of habeas corpus for providing relief from the "fatal evil" of "arbitrary imprisonments");
391. Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1733, 1779 n.244 (1991) (stating that the Suspension Clause "is most plausibly understood as extending only to cases of extrajudicial detention by federal authority, and thus does not guarantee a post-conviction remedy for state prisoners").
392. Habeas Corpus Act, 1679, 31 Car. 2, ch. 2 (Eng.).
393. See MEADOR, supra note 235, at 26-27 (explaining that the 1679 Act was primarily concerned with pretrial extrajudicial detentions and that such detentions "had been the burning issue for over half a century").
394. See Collings, supra note 234, at 337 (explaining the various remedies). Dallin Oaks explains:At common law and under the famous Habeas Corpus Act of 1679 the use of the Great Writ against official restraints was simply to ensure that a person was not held without formal charges and that once charged he was either bailed or brought to trial within a specified time. If a prisoner was held by a valid warrant or pursuant to the execution or judgment of a proper court, he could not obtain release by habeas corpus.
395. Oaks, supra note 23, at 244-45.
396. See Collings, supra note 234, at 337 ("In practice the writ was generally not granted where the party was in execution on a criminal charge after indictment according to the course of the common law.").
397. See id. at 338 ("State legislatures before and after the 1789 constitutional convention copied the Act of 1679 as their basic habeas corpus statute.");
398. Oaks, supra note 23, at 252-53 (stating that, with the lone exception of Connecticut, all of the early states patterned their habeas legislation after the1679 Act);
399. id. at 258-62 (elaborating on the 1679 Act's use as the early states' primary model).
400. See Collings, supra note 234, at 337-45 (arguing that the right protected by the Suspension Clause is the right to be either brought to trial or set free);
401. cf. Ex parte Yerger, 75 U.S. (8 Wall.) 85, 96 (1869) (noting that the 1679 Act provided the framework for the framers' understanding of the writ protected by the Suspension Clause).
402. See INS v. St. Cyr, 533 U.S. 289, 301 (2001) ("In England prior to 1789, in the Colonies, and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citizens.").
403. Neuman, supra note 247, at 989;
404. see also id. at 989-1020 (thoroughly canvassing federal cases illustrating this principle);
405. Gerald L. Neuman, Jurisdiction and the Rule of Law After the 1996 Immigration Act, 113 HARV. L. REV. 1963, 1966 (2000) (making the same point even concerning enemy aliens).
406. See Commonwealth v. Harrison, 11 Mass. (10 Tyng) 63, 63-66 (1814).
407. United States v. Wyngall, 5 Hill 16, 17 (N.Y. Sup. Ct. 1843).
408. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 775 (1950) (stating that, when a "resident enemy alien" is seized by the Executive during a declared war and is held for deportation pursuant to the Alien Enemy Act, a court will consider "his plea for freedom . . . only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act");
409. Ludecke v. Watkins, 335 U.S. 160, 171 (1948) (using the same standard as Eisentrager). Under the Alien Enemy Act, the president has the authority, when the United States is in the midst of a declared war or when it has been invaded by a foreign government, to deport individuals fourteenyears of age and older who are citizens of the hostile nation.
410. See Act of July 6, 1798, ch. 66, § 1, 1 Stat. 577 (codified as amended at 50 U.S.C. § 21 (2000)).
411. See supra note 262. Enemy aliens who have never entered the United States, however, might not have any constitutional claim of entitlement to the habeas writ. In 1950, the Court wrote: We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.
412. Eisentrager, 339 U.S. at 768. In 2004, the Supreme Court held, as a matter of federal statutory interpretation, that nonresident enemy aliens can invoke a federal court's habeas jurisdiction, so long as the court can reach the federal custodian with service of process.
413. See Rasul v. Bush, 542 U.S. 466, 478-84 (2004) (recognizing at least limited statutory habeas rights for detainees held by federal military authorities at the Guantanamo Naval Base in Cuba). It is not clear whether, absent such legislation, nonresident enemy aliens could claim a constitutional entitlement to the writ.
414. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2818 (2006) (Scalia, J., dissenting) (reaching a constitutional issue not addressed by the majority and concluding that, under Eisentrager, "petitioner, an enemy alien detained abroad, has no rights under the Suspension Clause").
415. Cf. Rumsfeld v. Padilla, 542 U.S. 426, 444 (2004) ("In habeas challenges to present physical confinement . . . the district of confinement is synonymous with the district court that has territorial jurisdiction over the proper respondent. . . . By definition, the immediate custodian and the prisoner reside in the same district.") (emphasis omitted).
416. Id. at 430-32.
417. As a matter of statutory interpretation concerning the federal writ, the Court has said that the prisoner need not be present in the jurisdiction of the court issuing the writ-all that is essential is that the court be able to reach the prisoner's custodian with service of process.
418. See Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494-500 (1973).
419. Citing statutory developments, Braden rejected the course charted in Ahrens v. Clark, 335 U.S. 188 (1948), in which the Court had held that, under the governing federal statute, the petitioner had to be located within the jurisdiction of the federal court issuing the writ.
420. Braden, 410 U.S. at 495-99;
421. see also Ahrens, 335 U.S. at 191 ("It would take compelling reasons to conclude that Congress contemplated the production of prisoners from remote sections, perhaps thousands of miles from the District Court that issued the writ.").
422. See Boumediene v. Bush, 476 F.3d 981, 1000-01 (D.C. Cir.) (Rogers, J., dissenting) (noting "[t]he paucity of direct [historical] precedent" in this area)
423. cert, granted, 127 S. Ct. 3078 (2007).
424. Ex parte Graham, 10 F. Cas. 911, 913 (C.C.E.D. Pa. 1818) (No. 5657) (emphasis added).
425. United States v. Davis, 25 F. Cas. 775, 775-76 (C.C.D.C. 1840) (No. 14,926).
426. Id. at 775.
427. Id. at 775-76.
428. In re Jackson, 15 Mich. 417, 420 (1867).
429. See id. at 422 (Campbell, J.).
430. See id. at 438-39 (Cooley, J.).
431. Id. at 441 (Cooley, J.).
432. Id. at 439-40 (Cooley, J.);
433. cf. JAMES A. SCOTT & CHARLES C ROE, THE LAW OF HABEAS CORPUS 129 (1923) (citing English precedent and stating "[n]o court has any authority to issue a writ of habeas corpus directed to a person outside of its territorial jurisdiction").
434. See Rivers v. Mitchell, 10 N.W. 626, 627-28 (Iowa 1881) (adopting the reasoning of the Davis court and of Justice Cooley in Jackson).
435. See Exparte Endo, 323 U.S. 283, 306 (1944).
436. But cf. Boumediene v. Bush, 476 F.3d 981, 990-91 (D.C Cir.) ("[W]e are convinced that the writ in 1789 would not have been available to aliens held at an overseas military base leased from a foreign government.")
437. cert, granted, 127 S. Ct. 3078 (2007).
438. See Thompson, supra note 169, at 3-5 (characterizing the practice in disparaging terms).
439. E.g., State v. Dimick, 12 N.H. 194, 197 (1841) ("The courts of the United States have no exclusive jurisdiction over [federal] officers [who unlawfully confine citizens].").
440. In re Stacy, 10 Johns. 328, 333 (N.Y. Sup. Ct. 1813).
441. State v. Brearly, 5 N.J.L. 639, 644 (1819).
442. Commonwealth ex rel. Webster v. Fox, 7 Pa. 336, 338 (1847).
443. Clarke D. Forsythe, The Historical Origins of Broad Federal Habeas Review Reconsidered, 70 NOTRE DAME L. REV. 1079, 1097 (1995) (identifying Hurd as "one of the most prominent habeas treatise authors of the nineteenth century").
444. HURD, supra note 17, at 201.
445. See supra notes 87-110 and accompanying text (discussing the state and federal litigation in Ableman).
446. In re Booth & Rycraft, 3 Wis. 157, 176 (1855) (Whiton, C.J.).
447. Id.
448. See generally Pettys, supra note 24, at 338-44 (discussing the framers' vision concerning ways in which the state and federal governments would compete for citizens' loyalty and affection);
449. Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031, 1042 (1997) (same).
450. THE FEDERALIST NO. 17 (Alexander Hamilton), supra note 179, at 115-16.
451. THE FEDERALIST NO. 16 (Alexander Hamilton), supra note 179, at 84;
452. cf. SIEMERS, supra note 27, at 13 (stating that many in the founding generation believed that, if the people did not consider a government "theirs," that government's "laws would have to be forced on the people rather than be willingly obeyed").
453. THE FEDERALIST NO. 45 (James Madison)
454. supra note 179, at 261.
455. See Pettys, supra note 24, at 340-44 (describing the framers' vision of competition between the state and federal governments for citizens' affection and for the regulatory power which that affection often yields).
456. See supra notes 179-85 and accompanying text (discussing the strong presumption in favor of concurrent jurisdiction).
457. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) ("The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.").
458. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82 (authorizing federal courts to grant habeas relief to federal prisoners).
459. See DUKER, supra note 3, at 155 ("The exposition given by the Court in Booth and Tarble is now the accepted view. In recent years it has gone unquestioned. Perhaps it is a question already reserved for the antiquarian.");
460. Neuman, supra note 10, at 597 (expressing comparable sentiments).
461. See supra notes 28-78 and accompanying text.
462. See supra notes 171-75 and accompanying text.
463. See supra notes 176-224 and accompanying text.
464. See supra notes 186-208 and accompanying text.
465. See supra notes 209-21 and accompanying text.
466. U.S. CONST, art. I, § 9, cl. 2.
467. See supra notes 230-79 and accompanying text.