by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law
Alexander Hamilton wrote that “the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.” Such arbitrary imprisonments appear to be a favored strategy of the new administration. But habeas corpus sets up an old school roadblock to Trump’s plans.
In Tuesday’s oral arguments before the Ninth Circuit, which Trump yesterday called “so political” and “disgraceful,” the government claimed it should be able to proceed with detaining and deporting individuals without fair process or recourse in the courts. It was the government’s tepid defense that was “political,” not the federal judges doing their job.
After all, the Suspension Clause in Article I of the Constitution states that the Privilege of the Writ of Habeas Corpus shall not be suspended by Congress, except in cases of rebellion or invasion. No one claims Congress has passed a law allowing these detentions or suspending habeas rights.
The Supreme Court has repeatedly struck down such efforts to hold people in custody without fair process, in the face of claims of national security. In Boumediene v. Bush, the 2008 decision holding that habeas corpus offers rights to Guantanamo Bay detainees, the court emphasized: "Where a person is detained by executive order, rather than, say, after being tried and convicted in a court,” the need for judicial review “is most pressing."