Boumediene's quiet theory: Access to courts and the separation of powers

Notre Dame Law Review

Volumn 84, Issue 5, 2009, Pages 2107-2150

  Vladeck, Stephen I ^a  

^a AMERICAN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 70349841579     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (318)

1. 128 S. Ct. 2229 (2008).
2. Ronald Dworkin, Why It Was a Great Victory, N.Y. REV. BOOKS, Aug. 14, 2008, at 18, 18.
3. U.S. CONST. art. I, § 9, cl. 2 ("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.").
4. See Boumediene, 128 S. Ct. at 2262. The D.C. Circuit had concluded that the Suspension Clause did not "apply" to Guantanamo.
5. See Boumediene v. Bush, 476 F.3d 981, 990-93 (D.C. Cir. 2007).
6. Pub. L. No. 109-366, 120 Stat. 2600 (codified in scattered sections of 10, 18, 28, 42 U.S.C.).
7. Id. § 7(a), 120 Stat. at 2635-36 (codified at 28 U.S.C. § 2241 (e)(1) (2006)). On why a statute that only divests the federal courts of subject matter jurisdiction could nevertheless violate the Suspension Clause
8. see Stephen I. Vladeck, The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia, 12 GREEN BAG 2D 71 (2008).
9. See Boumediene, 128 S. Ct. at 2274.
10. Id. at 2275.
11. The only prior example is the Court's rather obtuse decision in United States v. Klein, 80 U.S. (13 Wall.) 128, 145-48 (1872), although the precise basis for the Court's reasoning in Klein remains open to debate.
12. See, e.g., Evan Caminker, Schiavo and Klein, 22 CONST. COMMENT. 529, 537-43 (2005) (discussing two competing views of Klein in the context of Congress' intervention in the Terry Schiavo saga).
13. See generally Lawrence G. Sager, Klein's First Principle: A Proposed Solution, 86 GEO. L.J. 2525 (1998) (evaluating the relevance of Klein in our modern jurisprudence).
14. In prior cases, the Court had hesitated to even construe the Suspension Clause. See, e.g., INS v. St. Cyr, 533 U.S. 289, 301 n.13 (2001) ("The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely.").
15. See, e.g., Hamdan v. Gates, 565 F. Supp. 2d 130, 135 (D.D.C. 2008) (declining to reach whether other constitutional provisions could be invoked by a Guantanamo detainee facing trial by military commission).
16. As this article went to press, the D.C. district court concluded that at least three noncitizens detained as enemy combatants in Afghanistan are also protected by the Suspension Clause, relying heavily on Boumediene.
17. See Al Maqaleh v. Gates, No. 06-1669, 2009 WL 863657 (D.D.C. Apr. 2, 2009). In particular, Judge Bates concluded that Boumediene's logic necessarily extended to noncitizens captured outside of Afghanistan who were not themselves citizens of Afghanistan. See id. at *22-23.
18. See, e.g., In re Guantanamo Bay Detainee Litig., 570 F. Supp. 2d 13, 17-19 (D.D.C. 2008) (rejecting merits of petitioners' challenges regarding the constitutional adequacy of the conditions of their confinement).
19. After the D.C. Circuit decided in Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), that the government had no authority to detain Uighurs held as "enemy combatants" at Guantanamo, Judge Urbina ordered their release into the United States. See In re Guantanamo Bay Detainee Litig., 581 F. Supp. 2d 33, 43 (D.D.C. 2008). On appeal, the D.C. Circuit reversed, concluding that the federal courts are powerless to order the detainees' release into the United States, and that the result of such analysis (that is, the Uighurs' potentially indefinite detention) is not unconstitutional because the Guantanamo detainees are not protected by the Due Process Clause. See Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009), petition for cert. filed, 77 U.S.L.W. 3577 (U.S. Apr. 3, 2009) (No. 08-1234).
20. See, e.g., Jennifer Norako, Comment, Accuracy or Fairness?: The Meaning of Habeas Corpus After Boumediene v. Bush and Its Implications on Alien Removal Orders, 58 AM. U. L. REV. (forthcoming 2009) (arguing that Boumediene's analysis calls into question the constitutionality of the judicial review provisions of the REAL ID Act of 2005, which preclude access to habeas corpus for immigrants challenging their removal orders).
21. I borrow this phrase from Justice Jackson, as relayed by my former colleague Pat Gudridge. See Patrick O. Gudridge, Remember Endo ?, 116 HARV. L. REV. 1933, 1959 (2003).
22. Boumediene v. Bush, 128 S. Ct. 2229, 2247 (2008) (citations omitted) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion)).
23. Id. at 2246-47, 2253, 2259, 2263, 2269-70, 2277, 2297-98, 2307.
24. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 593 & n.23 (2006) (rejecting the argument that the President had the authority to convene military tribunals inconsistent with the scope of the statutory authorization that Congress had provided).
25. Boumediene, 128 S. Ct. at 2246.
26. Id. at 2247 (citing THE FEDERALIST NO. 84, at 512 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
27. Id. at 2259.
28. Id. at 2277.
29. See, e.g., Hamdan, 548 U.S. at 638 (Kennedy, J., concurring in part);
30. Rasul v. Bush, 542 U.S. 466, 485-88 (2004) (Kennedy, J., concurring in the judgment).
31. 531 U.S. 533 (2001).
32. Id. at 548-49.
33. Id. at 546;
34. see also id. at 545 ("By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power. Congress cannot wrest the law from the Constitution which is its source.").
35. Indeed, two of the most sustained academic critiques to date of Boumediene have taken a rather dismissive attitude toward the significance (and plausibility) of Justice Kennedy's separation-of-powers analysis.
36. See Eric A. Posner, Boumediene and the Uncertain March of Judicial Cosmopolitanism, 2007-2008 CATO SUP. CT. REV. 23, 23 ("[O]n inspection it becomes clear that the real basis of the opinion lies elsewhere.");
37. Robert J. Pushaw, Jr., Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic?, 84 NOTRE DAME L. REV. 1975, 2039 (2009) ("[I]t is Kafkaesque for the majority to invoke 'separation of powers' as a justification for dismanding two bulwarks of that doctrine, congressional control over federal jurisdiction and the political question doctrine.").
38. Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739 (codified as amended in scattered sections of 10, 28, 42 U.S.C.).
39. See, e.g., Boumediene v. Bush, 128 S. Ct. 2229, 2270 (2008) ("Even if we were to assume that the CSRTs satisfy due process standards, it would not end our inquiry.");
40. id. ("[W]e make no judgment as to whether the CSRTs, as currendy constituted, satisfy due process standards .").
41. See id. at 2280-83 (Roberts, C.J., dissenting).
42. See, e.g., id. at 2270 (majority opinion). Justice Kennedy thus invoked Justice Holmes' dissent in Frank v. Mangum, 237 U.S. 309 (1915), suggesting that the purpose of habeas corpus is to "'cu[t] through all forms and g[o] to the very tissue of the [constitutional] structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.'" Boumediene, 128 S. Ct. at 2270 (quoting Mangum, 237 U.S. at 346 (Holmes, J., dissenting) (First and second alterations in original)).
43. See, e.g., Norako, supra note 15. Indeed, this distinction harkens back to the conflict in post-conviction habeas cases between Justice Brennan's position in Fay v. Noia, 372 U.S. 391 (1963), which suggested that habeas was concerned solely with the legality of detention "simpliciter," id. at 430, and the "process" view first articulated by Paul Bator.
44. see generally Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441 (1963) (arguing that institutional considerations support the invocation of federal habeas jurisdiction only when state courts fail to provide a satisfactory process for deciding federal questions), and later effectively adopted by the Supreme Court in a series of cases culminating in Wainwright v. Sykes, 433 U.S. 72 (1977), and Coleman v. Thompson, 501 U.S. 722 (1991).
45. Christopher v. Harbury, 536 U.S. 403, 415 (2002) (footnote omitted).
46. Webster v. Doe, 486 U.S. 592, 603 (1988) (internal quotation marks omitted).
47. See, e.g., United States v. United Mine Workers of Am., 330 U.S. 258, 291 (1947);
48. see also United States v. Ruiz, 536 U.S. 622, 628 (2002) ("[I]t is familiar law that a federal court always has jurisdiction to determine its own jurisdiction.").
49. See, e.g., Torres de la Cruz v. Maurer, 483 F.3d 1013, 1018 (10th Cir. 2007) ("[A]s an Article III court, we have inherent jurisdiction 'to determine whether [a] jurisdictional bar applies.'" (quoting Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir. 2004)).
50. 523 U.S. 83 (1998).
51. Specifically, Steel Co. held that the federal courts have no power to assume the existence of jurisdiction and decide a case on the merits, even where the result would have been the same and the jurisdictional issue was far more complicated.
52. See id. at 93-102. But see Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007) (clarifying that Steel Co. does not preclude resolution of other threshold issues). For present purposes, the relevant point is that resolving the "threshold" jurisdictional question in jurisdiction-stripping cases necessarily involves resolving constitutional challenges to statutes purportedly precluding jurisdiction. Cf. Schiavo ex rel. Schindler v. Schiavo, 404 F.3d 1270, 1272 (11th Cir. 2005) (Birch, J., specially concurring in the denial of rehearing en banc) (explaining why Steel Co. requires courts to decide as a threshold matter constitutional challenges to statutes conferring jurisdiction).
53. See, e.g., Boumediene v. Bush, 476 F.3d 981, 994 (D.C. Cir. 2007) (ridiculing the idea that Guantanamo Bay detainees are protected by the separation of powers even if they have no other constitutional rights).
54. There is substantial disagreement about the source of such a right. See, e.g., Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) ("Decisions of this Court have grounded the right of access to courts in the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses." (citations omitted)).
55. See generally Risa E. Kaufman, Access to the Courts as a Privilege or Immunity of National Citizenship, 40 CONN. L. REV. 1477 (2008) (asserting that civil litigants have a constitutionally protected right of access to federal courts by virtue of the Fourteenth Amendment).
56. 312 U.S. 546 (1941).
57. Lewis v. Casey, 518 U.S. 343, 379 n.7 (1996) (Thomas, J., concurring).
58. See Hull, 312 U.S. at 549 ("Whether a petition for writ of habeas corpus addressed to a federal court is properly drawn ⋯ [is a] question [ ] for that court alone to determine.").
59. See Louis L.Jaffe, The Right to Judicial Review (pts. 1 & 2), 71 HARV. L. REV. 401, 769 (1958);
60. see also Louis L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 327 (1965) ("The 'right' to judicial review is determined by common-law tradition ⋯ , by the statute book, and by the Constitution.").
61. As Jaffe explains, this trend began in 1902 in American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902), as a "presumption" in favor of judicial review.
62. see Jaffe, supra note 45, at 423-24, but did not crystallize until the aftermath of Crowell v. Benson, 285 U.S. 22 (1932), and its broad endorsement of administrative adjudication. See Jaffe, supra note 45, at 800-08.
63. St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936) (Brandeis, J., concurring) (emphasis added).
64. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
65. See, e.g., Lewis v. Casey, 518 U.S. 343, 344 (1996) (dividing 5-4 on the scope of the right of access to the courts).
66. See Felker v. Turpin, 518 U.S. 651, 667 n.1 (1996) (Souter, J., concurring) ("Such a petition is commonly understood to be 'original' in the sense of being filed in the first instance in this Court, but nonetheless for constitutional purposes an exercise of this Court's appellate (rather than original) jurisdiction." (citing Dallin H. Oaks, The "Original" Writ of Habeas Corpus in the Supreme Court, 1962 SUP. CT. REV. 153));
67. see also Stephen I. Vladeck, Deconstructing Hirota: Habeas Corpus, Citizenship, and Article III, 95 GEO. L.J. 1497, 1511-15 (2007) (summarizing the evolution of the Supreme Court's "original" habeas jurisdiction).
68. See Ex parte Hull, 312 U.S. 546, 547-49 (1941) (describing the background and the pre-clearance requirement).
69. Id. at 549.
70. 269 U.S. 341, 346 (1926).
71. 185 U.S. 148, 152 (1902).
72. 177 U.S. 442, 447 (1900).
73. 33 F. Supp. 464 (D. Kan. 1940).
74. See Lewis v. Casey, 518 U.S. 343, 379 n.7 (1996) (Thomas, J., concurring). Such a result should have necessarily followed from Justice Story's opinion in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), although the issue may not have been fully settled until Cooper v. Aaron, 358 U.S. 1, 17-19 (1958) (reaffirming that the legislative and executive branches of state governments are bound to follow the Supreme Court's decisions on the U.S. Constitution).
75. See generally Frederic M. Bloom, Cooper's Quiet Demise (A Short Response to Professor Strauss), 52 ST. LOUIS U. L.J. 1115 (2008) (discussing Cooper and its significance).
76. See Sharp, 33 F. Supp. at 466.
77. See, e.g., First Nat'l Bank v. Anderson, 269 U.S. 341, 346 (1926) ("Whether a pleading sets up a sufficient right of action or defense, grounded on the Constitution or a law of the United States, is necessarily a question of federal law; and where a case coming from a state court presents that question, this court must determine for itself the sufficiency of the allegations displaying the right or defense, and is not concluded by the view taken of them by the state court.").
78. See Ex parte Hull, 312 U.S. 546, 550-51 (1941) (holding that Hull had procedurally defaulted).
79. See, e.g., Johnson v. Avery, 393 U.S. 483, 498 n.24 (1969) (Douglas, J., concurring);
80. White v. Ragen, 324 U.S. 760, 762 n.1 (1945) (per curiam).
81. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 239 (1968);
82. Peyton v. Rowe, 391 U.S. 54, 67 (1968).
83. 351 U.S. 12 (1956).
84. See id. at 19-20 (plurality opinion).
85. 365 U.S. 708 (1961).
86. See id. at 713-14.
87. 372 U.S. 353 (1963).
88. See id. at 357-58.
89. 393 U.S. 483 (1969).
90. See id. at 488-90.
91. 417 U.S. 600 (1974).
92. Id. at 608-09 (footnote omitted).
93. 418 U.S. 539 (1974).
94. See id. at 577-80.
95. Id. at 576 (citations omitted);
96. see also id. ("[E]ven if one were to accept the argument that inspection of incoming mail from an attorney placed an obstacle to access to the court, it is far from clear that this burden is a substantial one.").
97. 430 U.S. 817 (1977).
98. 404 U.S. 15 (1971) (per curiam).
99. Gilmore v. Lynch, 319 F. Supp. 105, 112 (N.D. Cal. 1970) (per curiam) (three-judge court).
100. Gilmore, 404 U.S. at 15. As remains true today, the Supreme Court's appellate jurisdiction from three-judge district courts was mandatory, so long as the three-judge district court itself properly had jurisdiction.
101. See 28 U.S.C. § 1253 (2006);
102. see also Moody v. Flowers, 387 U.S. 97, 101-02 (1967) (construing § 1253).
103. Gilmore, 404 U.S. at 15.
104. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 784 n.5 (1983) ("[T]he precedential effect of a summary affirmance extends no further than 'the precise issues presented and necessarily decided by those actions.' A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment." (quoting Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182 (1978))).
105. See, e.g., Bounds v. Smith, 430 U.S. 817, 828-29 (1977) (discussing the implications of Gilmore).
106. Id. at 828.
107. Id. at 818.
108. Id. at 823 (emphasis added) (quoting Ross v. Moffitt, 417 U.S. 600, 611, 612, 615 (1974)). In an analogous context, the Court had held just one month before Bounds that a statute displacing habeas corpus did not implicate the Suspension Clause so long as the remedy it provided was an "adequate" and "effective" substitute for habeas. See Swain v. Pressley, 430 U.S. 372, 379-84 (1977).
109. Bounds, 430 U.S. at 825.
110. Id. at 828.
111. Id. at 833 (Powell, J., concurring).
112. Id.
113. See id. at 839-40 (Rehnquist, J., dissenting).
114. Id.
115. see also id. at 836 (Stewart, J., dissenting) (describing the Court's conclusion in Gilmore, on which Bounds relied, as a "quantum jump" from the earlier case law).
116. Id. at 839 (Rehnquist, J., dissenting).
117. In this regard, the denial-of-access cases were part of a larger series of cases in which the Rehnquist Court evinced an ever growing hostility to the private enforcement of public (and particularly civil) rights.
118. See generally Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 IND. L.J. 223 (2003) (detailing how the Rehnquist Judiciary advocated against investing federal courts with obligations to enforce new rights);
119. Andrew M. Siegel, The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court's Jurisprudence, 84 TEX. L. REV. 1097 (2006) (analyzing a number of areas where the Court has acted aggressively to limit the availability of remedies and rights of action, assessing the source of such hostility, and examining its effects on the Court's docket).
120. 386 U.S. 738 (1967).
121. 481 U.S. 551 (1987).
122. See id. at 559.
123. 492 U.S. 1 (1989).
124. See id. at 11 (plurality opinion).
125. See id. at 7-11.
126. Id. at 13 (O'Connor, J., concurring).
127. 518 U.S. 343 (1996).
128. Id. at 346.
129. See Casey v. Lewis, 834 F. Supp. 1553, 1569 (D. Ariz. 1992);
130. see also Casey, 518 U.S. at 346-47 (summarizing the district court's holdings).
131. Casey, 834 F. Supp. at 1569.
132. See Lewis v. Casey, 43 F.3d 1261, 1270-72 (9th Cir. 1994).
133. Casey, 518 U.S. at 359-60.
134. Casey, 518 U.S. at 351.
135. See id. at 360 ("Apart from the dismissal of Bartholic's claim with prejudice, and Harris's inability to file his claim, there is no finding, and as far as we can discern from the record no evidence, that in Arizona prisons illiterate prisoners cannot obtain the minimal help necessary to file particular claims that they wish to bring before the courts.").
136. See id. at 393-404 (Souter, J., concurring in part, dissenting in part, and concurring in the judgment).
137. See id. at 349 ("The requirement that an inmate ⋯ must show actual injury derives ⋯ from the doctrine of standing, a constitutional principle that prevents courts of law from undermining tasks assigned to the political branches.").
138. Id. at 364 (Thomas, J., concurring).
139. Id. at 379.
140. See id. at 379 n.7.
141. 536 U.S. 403 (2002).
142. See id. at 406-08 (summarizing the background and allegations);
143. see also Harbury v. Hayden, 522 F.3d 413, 415-16 (D.C. Cir. 2008) (same).
144. Harbury, 536 U.S. at 405.
145. Id. at 414-15 (footnote omitted).
146. See generally Jaffe, supra note 45 (analyzing the role of judicial review in the governmental process and arguing that judicial review of administrative action should be presumptively available).
147. As I explain below, even the Court's decision in Boumediene v. Bush striking down a jurisdiction-stripping statute as unconstitutionally denying access to the courts, was focused on the habeas-specific access right protected by the Constitution's Suspension Clause, and not a more general right to judicial review of a constitutional claim.
148. See, e.g., Johnson v. Robison, 415 U.S. 361, 366-67 (1973) (raising these questions before seeking to avoid them through statutory construction).
149. 5 U.S. (1 Cranch) 137 (1803). There have been a series of recent arguments that judicial review predated Marbury.
150. See, e.g., William Michael Treanor, Judicial Review Before Marbury, 58 STAN. L. REV. 455, 456-57 (2005) (summarizing recent debate on the topic). The contemporary debate notwithstanding, it is certainly true that the principle of judicial review was established at least by the time Marbury was decided.
151. Jaffe traced the origins of judicial review (and of a potential right thereto) to early English common law, as surveyed first in Louis L. Jaffe & Edith G. Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. REV. 345 (1956), and in somewhat less detail in JAFFE, supra note 45, at 327-34.
152. See Jaffe, supra note 45, at 423-37. As Jaffe notes, prior to 1902, a series of late nineteenth-century Supreme Court decisions had suggested, often implicitly, that at least some administrative law claims could be made unreviewable.
153. See id. at 421-23. I do not mean to suggest that there is nothing to gain from administrative law prior to the turn of the twentieth century. On the contrary, Professor Jerry Mashaw is in the midst of an immensely significant project reconstructing the administrative law of the early Republic, taking issue with the classical view that administrative law only "began" with the creation of the Interstate Commerce Commission in 1887.
154. See Jerry L. Mashaw, Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861, 117 YALE L.J. 1568 (2008);
155. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 YALE L.J. 1256 (2006);
156. Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 YALE L.J. 1636 (2007). Whatever significance we may attach to the implications of Mashaw's work, it seems fairly clear that the Court did not begin viewing widespread administrative adjudication as a threat to judicial supremacy until the period Jaffe describes.
157. 187 U.S. 94 (1902).
158. See id. at 109-10 (restating the position of the Postmaster General).
159. Id. at 108.
160. Id.
161. See, e.g., Jaffe, supra note 45, at 423-27.
162. For a representative sampling, see id. at 425-28.
163. Id. at 428.
164. See, e.g., Stark v. Wickard, 321 U.S. 288, 310 (1944) ("The responsibility of determining the limits of statutory grants of authority ⋯ is a judicial function .").
165. 285 U.S. 22 (1932).
166. Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 915, 923 (1988) (footnotes omitted) (quoting Crowell, 285 U.S. at 51).
167. Id. at 923-24 (footnotes omitted).
168. For a summary of the debate and further citations, see Judith Resnik, The Federal Courts and Congress: Additional Sources, Alternative Texts, and Altered Aspirations, 86 GEO. L.J. 2589, 2606 n.89 (1998). (Pubitemid 128426738)
169. Crowell, 285 U.S. at 45;
170. see also id. at 46 ("[T]he statute contains no express limitation attempting to preclude the court, in proceedings to set aside an order as not in accordance with law, from making its own examination and determination of facts whenever that is deemed to be necessary to enforce a constitutional right properly asserted.").
171. See id. at 56 ("It is ⋯ a question of the appropriate maintenance of the Federal judicial power in requiring the observance of constitutional restrictions. It is the question whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency-in this instance a single deputy commissioner-for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend." (footnote omitted)).
172. 298 U.S. 38 (1936).
173. See Crowell, 285 U.S. at 77-80 (Brandeis, J., dissenting).
174. St. Joseph Stock Yards, 298 U.S. at 84 (Brandeis, J., concurring) (emphasis added). On questions of fact, per his dissent in Crowell, Brandeis was more circumspect: If there be any [factual] controversy to which the judicial power extends that may not be subjected to the conclusive determination of administrative bodies or federal legislative courts, it is not because of any prohibition against the diminution of the jurisdiction of the federal district courts as such, but because, under certain circumstances, the constitutional requirement of due process is a requirement of judicial process. Crowell, 285 U.S. at 87 (Brandeis, J., dissenting).
175. See, e.g., Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986) (citing Brandeis' concurrence);
176. Johnson v. Robison, 415 U.S. 361, 366 n.8 (1974) (same).
177. Fair Labor Standards Act of 1938, ch. 676, 52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 201-219 (2006)).
178. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) (requiring that time spent walking "from time clock to work bench" be included in compensable working time);
179. Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of Am., 325 U.S. 161, 170 (1945) (classifying underground travel in coal mines as compensable);
180. Tenn. Coal, Iron & R.R. v. Muscoda Local No. 123, 321 U.S. 590, 603 (1944) (same result for iron ore mines).
181. William M. Wiecek, The Debut of Modern Constitutional Procedure, 26 REV. LITIG. 641, 693 (2007) (footnotes omitted).
182. Portal-to-Portal Act of 1947, ch. 52, 61 Stat. 86 (codified as amended at 29 U.S.C. §§ 251-254 (2006)).
183. Id. § 2(d), 61 Stat. at 86 (codified at 29 U.S.C. § 252(d)).
184. 169 F.2d 254 (2d Cir. 1948).
185. Id. at 257.
186. Id.
187. See id. at 259-61;
188. see also Seese v. Bethlehem Steel Co. Shipbuilding Div., 168 F.2d 58, 65 (4th Cir. 1948) ("Whether the denial of jurisdiction would be valid if the provision striking down the claims were invalid is a question which does not arise.").
189. 80 U.S. (13 Wall.) 128 (1871).
190. See id. at 145-48;
191. see also supra note 9 (citing sources).
192. Akhil Reed Amar, Law Story, 102 HARV. L. REV. 688, 691 (1989)
193. (reviewing PAUL M. BATOR ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (3d ed. 1988));
194. see also PAUL M. BATOR ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM, id. at 692 & nn.15-28 (citing articles representative of the period).
195. Indeed, it was during this exact period that courts and commentators were struggling with the question of whether individuals in U.S. custody overseas were entitled to judicial process, a dilemma that raised many of the same tensions. See generally Charles Fairman, Some New Problems of the Constitution Following the Flag, 1 STAN. L. REV. 587 (1949) (evaluating problems relating to the extent of federal jurisdiction over cases arising in military tribunals overseas).
196. Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1383-84 & n.67 (1953).
197. HENRY M. HART, JR. & HERBERT WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 302 (1st ed. 1953).
198. See Hart, supra note 155, at 1398-99.
199. 415 U.S. 361 (1974).
200. Id. at 364-65.
201. Id. at 366.
202. See id. at 366-67 & n.8.
203. 74 U.S. (7 Wall.) 506 (1869).
204. 49 U.S. (8 How.) 441 (1850).
205. The problem with both McCardle and Sill, of course, is that neither of the statutes upheld by the Supreme Court ousted all jurisdiction. In Sill, the litigants were free to return to state court since federal jurisdiction had only been premised on diversity. And in McCardle, the Court famously hinted that the repeal of its appellate jurisdiction had not altered its "original" habeas jurisdiction under section 14 of the Judiciary Act of 1789. See McCardle, 74 U.S. (7 Wall.) at 515 ("The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised."). The Court would seize on this point less than seven months later, sustaining its original habeas jurisdiction over a similar habeas petition in Ex parte Yerger, 75 U.S. (8 Wall.) 85, 103-06 (1869). For more on the relationship between these cases, see Hart, supra note 155, at 1364-65 & n.14.
206. See also Caprice L. Roberts, Jurisdiction Stripping in Three Acts: A Three String Serenade, 51 VILL. L. REV. 593, 642-46 (2006) (discussing the present-day significance of McCardle as authority for limitations on appellate jurisdiction).
207. 14 U.S. (1 Wheat.) 304 (1816).
208. St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 82-84 (1936) (Brandeis, J., concurring).
209. 422 U.S. 749 (1975).
210. See id. at 761-62.
211. 476 U.S. 667 (1986).
212. See id. at 680-81.
213. Id. at 681 n.12.
214. 486 U.S. 592 (1988).
215. Id. at 595-96.
216. Id. at 603.
217. Id. (citations omitted) (quoting Bowen, 476 U.S. at 681 n.12). For the "colorable" requirement, Chief Justice Rehnquist cited Bowen, which had rejected the government's argument that it could dismiss the constitutional claims there at issue on grounds of frivolity. Id.
218. See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 495 (1999) (Ginsburg, J., concurring in judgment) (citing Webster, 486 U.S. at 603);
219. Lincoln v. Vigil, 508 U.S. 182, 195 (1993) (citing Webster, 486 U.S. at 603-04).
220. 478 U.S. 833 (1986).
221. Id. at 835-36.
222. Id. at 835-36.
223. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 84 (1982) (plurality opinion).
224. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 584 (1985) (citing Northern Pipeline, 458 U.S. at 84, 90-92).
225. Schor, 478 U.S. at 848 (quoting first Thomas, 473 U.S. at 583, then United States v. Will, 449 U.S. 200, 218 (1980)).
226. Id.
227. See id. at 848-49. Justice O'Connor further concluded that even if Schor had not expressly waived such a right, he had effectively so waived by proceeding in the CFTC in the first place.
228. See id. at 849-50.
229. Id. at 850 (quoting first Nat. Mut. Ins. Co. v. Tide-Water Transfer Co., 337 U.S. 582, 644 (1949), then Buckley v. Valeo, 424 U.S. 1, 122 (1976)).
230. Schor, 478 U.S. at 851 (quoting first Thomas, 473 U.S. at 584, then Northern Pipeline, 458 U.S. at 84-85).
231. See id. at 852-53.
232. Id. at 854.
233. Id. at 855.
234. Id.
235. See supra note 140 and accompanying text (discussing Justice Brandeis' views);
236. see also supra note 181 and accompanying text (discussing Justice O'Connor's views).
237. See Schor, 478 U.S. at 867 (Brennan, J., dissenting).
238. See, e.g., Brown v. Allen, 344 U.S. 443, 512 (1953) (Frankfurter, J., concurring) ("[Habeas] bring[s] into question the legality of a person's restraint and [requires] justification for such detention.");
239. Waley v. Johnston, 316 U.S. 101, 104-05 (1942) (holding that habeas corpus permits a challenge to a valid conviction obtained without regard for the accused's constitutional rights). For a brief summary of the evolution of habeas
240. see Felker v. Turpin, 518 U.S. 651, 663-64 (1996).
241. See, e.g., Todd E. Pettys, State Habeas Relief for Federal Extrajudicial Detainees, 92 MINN. L. REV. 265 (2007) (surveying the availability of federal habeas relief in state courts in the antebellum era and the Court's rejection of such authority in a pair of decisions bookending the Civil War).
242. 80 U.S. (13 Wall.) 397 (1872).
243. See id. at 411 ("If a party ⋯ be illegally imprisoned [by federal authorities] it is for the courts ⋯ of the United States and those courts ⋯ alone to grant him release.").
244. For two quite different views of Tarble, see Daniel A. Farber, The Trouble With Tarble's: An Excerpt from an Alternative Casebook, 16 CONST. COMMENT. 517, 519-21 (1999) (presenting an edited version of "Ex parte Printz")
245. Edward A. Hartnett, The Constitutional Puzzle of Habeas Corpus, 46 B.C. L. REV. 251, 258-60 (2005).
246. Act of Feb. 5, 1867, ch. 27, 14 Stat. 385.
247. WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 191 (1980).
248. The implications of this history are sketched out in more detail in Stephen I. Vladeck, The Suspension Clause as a Structural Right, 62 U. MIAMI L. REV. 275, 291-92 (2008).
249. 518 U.S. 651 (1996).
250. Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 18, 28, 40, 42 U.S.C.).
251. In particular, the statute required the courts of appeals to give permission to appeal adverse district court decisions in certain "gatekeeper" cases, and barred appellate jurisdiction in the Supreme Court from denials of such permission by the circuit courts. See 28 U.S.C. § 2244(b)(3)(E) (2006);
252. see also Felker, 518 U.S. at 657 (describing the statute).
253. See Felker, 518 U.S. at 660-62.
254. See id. at 663-64.
255. 533 U.S. 289 (2001).
256. Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 U.S.C.).
257. See St. Cyr, 533 U.S. at 298-314.
258. Id. at 301 n.13.
259. See id. at 308-14.
260. In dissent, Justice Scalia derided such analysis as requiring a "superclear statement." See id. at 327 (Scalia, J., dissenting).
261. See, e.g., id. at 300-01 (majority opinion) ("[R]egardless of whether the protection of the Suspension Clause encompasses all cases covered by the 1867 Amendment extending the protection of the writ to state prisoners, or by subsequent legal developments, at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789.'" (citations omitted)).
262. The Suspension Clause does not necessarily require the habeas remedy even in cases where it applies. Rather, it requires a remedy that is at bottom an "adequate" and "effective" substitute. See Swain v. Pressley, 430 U.S. 372, 381 (1977) ("[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension . . . .").
263. See St. Cyr, 533 U.S. at 301-03 & nn.14-23.
264. Pub. L. No. 109-13, div. B, 119 Stat. 302 (codified as amended in scattered sections of 8, 49 U.S.C.).
265. See 548 U.S. 557, 572-84 (2006). For a discussion of the Court's jurisdictional analysis, see Stephen I. Vladeck, The Increasingly "Unflagging Obligation": Federal Jurisdiction After Saudi Basic and Anna Nicole, 42 TULSA L. REV. 553, 557-58 (2007).
266. 28 U.S.C. § 2241(e)(1) (2006).
267. The Act fails to provide commission defendants with interlocutory relief, see Khadr v. United States, 529 F.3d 1112, 1117 (D.C. Cir. 2008), and the D.C. District Court has held that it constitutionally precludes pretrial habeas relief, as well
268. see Hamdan v. Gates, 565 F. Supp. 2d 130, 135-36 (D.D.C. 2008).
269. Compare, e.g., Swain v. Pressley, 430 U.S. 372, 381-82 (1977) (finding an alternative remedy adequate as it had the "same scope" as the pre-existing habeas remedy), with Bismullah v. Gates, 501 F.3d 178, 189 (D.C. Cir. 2007) (considering the scope of the remedy provided by the MCA and the DTA), and Bismullah v. Gates, 503 F.3d 137, 141 (D.C. Cir. 2007) (same).
270. See 476 F.3d 981, 988-94 (D.C. Cir. 2007).
271. Boumediene v. Bush, 127 S. Ct. 1478, 1478 (2007) (mem.). Justices Souter, Ginsburg, and Breyer dissented. See id. at 1479-81 (Breyer, J., dissenting from the denial of certiorari).
272. Boumediene v. Bush, 127 S. Ct. 3078 (2007) (mem.).
273. See Boumediene v. Bush, 128 S. Ct. 2229, 2262 (2008). For more on Justice Scalia's central critique of this first holding-that it is unfaithful to the Court's decision in Johnson v. Eisentrager, 339 U.S. 763 (1950)
274. see Stephen I. Vladeck, The Problem of Jurisdictional Non-Precedent, 44 TULSA L. REV. (forthcoming 2009) (explaining why Justice Kennedy was writing on a blank slate with respect to whether the Suspension Clause "applied" to Guantanamo).
275. See Boumediene, 128 S. Ct. at 2271-74.
276. Id. at 2270 (quoting Bismullah v. Gates, 514 F.3d 1291, 1296 (D.C. Cir. 2008) (Ginsburg, C.J., concurring with the denial of rehearing en banc)).
277. Id. at 2271.
278. See id. at 2271-74.
279. At least one court has concluded to the contrary. See Kiyemba v. Obama, 555 F.3d 1022, 1026-27 (D.C. Cir. 2009) (reasoning that, notwithstanding Boumediene, the Guantanamo detainees lack due process rights).
280. Id. at 2259 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
281. Id. at 2280-81 (Roberts, C.J., dissenting).
282. 542 U.S. 507 (2004).
283. Boumediene, 128 S. Ct. at 2281 (Roberts, C.J., dissenting) (citations omitted);
284. see also id. at 2286-87 ("Declaring that petitioners have a right to habeas in no way excuses the Court from explaining why the DTA does not protect whatever due process or statutory rights petitioners may have. Because if the DTA provides a means for vindicating petitioners' rights, it is necessarily an adequate substitute for habeas corpus.").
285. Id. at 2268 (majority opinion).
286. Id. (citing Brown v. Allen, 344 U.S. 443, 506 (1953) (opinion of Frankfurter, J.)).
287. Id. (citing Ex parte Royall, 117 U.S. 241, 251-52 (1886)).
288. Id.
289. Id. at 2269.
290. Id.
291. Indeed, as Professor Jared Goldstein has argued, the entire purpose of habeas corpus is not to ask whether the petitioner has individual rights that have been violated, but only whether the execudve has the authority to detain-that "rights" should be irrelevant to the habeas inquiry.
292. See Jared A. Goldstein, Habeas Without Rights, 2007 WIS. L. REV. 1165, 1180-97.
293. See St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936) (Brandeis, J., concurring).
294. See 312 U.S. 546, 549 (1941).
295. See Webster v. Doe, 486 U.S. 592, 603-04 (1988);
296. see also supra note 175 and accompanying text (discussing the origins of the "colorable" requirement).
297. See, e.g., Sprint Commc'ns Co. v. APCC Servs., Inc., 128 S. Ct. 2531, 2535 (2008).
298. See 28 U.S.C. § 1257 (2006);
299. see also, e.g., Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 41 n.15 (1989) (asserting jurisdiction under § 1257 over state court judgments where there is a dispute as to whether a state statute violates the U.S. Constitution).
300. See, e.g., 28 U.S.C. §§ 2342, 2349 (2006).
301. See Chevron, U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).
302. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 255-56 (2006).
303. See, e.g., Chevron, 467 U.S. at 843 n.9 ("The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. ⋯ If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.").
304. 431 U.S. 195 (1977).
305. Act of Aug. 1, 1950, ch. 512, 64 Stat. 384 (codified as amended at 48 U.S.C. §§ 1421-1428e (2006)).
306. Id. § 22(a), 64 Stat. at 389-90 (codified as amended at 48 U.S.C. § 1424-3(a)). The District Court of Guam's decisions in federal question (and certain other civil) cases were, in turn, appealable either to the U.S. Court of Appeals for the Ninth Circuit or directly to the U.S. Supreme Court. See id. § 23, 64 Stat. at 390 (codified as amended at 48 U.S.C. § 1424-3 (c)).
307. See Santos, 431 U.S. at 197 (discussing the background).
308. After Santos, Congress amended the Organic Act to provide that "the [Guam] legislature may not preclude the review of any judgment or order" that raises a federal question." 48 U.S.C. § 1424-3(a).
309. Santos, 431 U.S. at 201.
310. Id. at 204 (citing Hart, supra note 155).
311. As an amusing historical footnote, Brennan's opinion in Santos repeatedly cited to (and quoted from) a similarly-themed dissenting opinion filed in an earlier Ninth Circuit case that raised the same issue-by then-Circuit Judge Anthony M. Kennedy.
312. See Agana Bay Dev. Co. (Hong Kong) Ltd. v. Supreme Court of Guam, 529 F.2d 952, 958-61 (9th Cir. 1976) (Kennedy, J., dissenting). On closer inspection, Kennedy's opinion in Agana Bay raised the same constitutional concerns that Brennan articulated in Santos.
313. See, e.g., id. at 959 ("[F]or Guam to abolish all appellate jurisdiction would be a wholly irresponsible legislative act, raising serious constitutional questions. It is unlikely that Congress intended to give the Guam legislature the power to commit such an act, and such intent should not be assumed in the absence of express language to that effect.").
314. See, e.g., Tafflin v. Levitt, 493 U.S. 455, 458-59 (1990).
315. See 28 U.S.C. § 1257;
316. see also Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 351 (1816) (declaring section 25 of the Judiciary Act constitutional).
317. In that sense, the analysis herein is both consistent with (and derives support from) the intriguing argument advanced by Professor Pfander that the power of state courts to decide federal questions should be understood not as inherent in their jurisdiction, but as deriving from Congress' decision not to make federal jurisdiction over such a claim exclusive in the first place.
318. See James E. Pfander, Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation, 101 Nw. U. L. REV. 191, 238 (2007).