Experts have long debated Congress’s power to withhold federal court jurisdiction. But in 2008, the case Boumediene v. Bush purportedly settled the question regarding habeas petitions: The Suspension Clause precludes Congress from withholding all federal jurisdiction over habeas claims, at least where Congress has not provided an “adequate and effective substitute” procedure. The case’s holding, however, conflicts with the historical understanding of Congress’s broad power to define the jurisdiction of federal courts. In contrast, Justice Antonin Scalia’s alternative theory proffered in the 2001 case I.N.S. v. St. Cyr reconciles the Suspension Clause with congressional authority by proposing that the Suspension Clause does not limit congressional power to alter or eliminate federal court habeas jurisdiction.
Arguments that Congress may withhold habeas jurisdiction typically stem from the language of Article III. The Supreme Court’s original jurisdiction does not include habeas jurisdiction. Consequently, the Court can only hear habeas petitions under its appellate jurisdiction, to which Congress may make exceptions. Article III also leaves Congress the discretion to create lower federal courts; and cases interpreting this clause hold that the power to create the lower courts affords Congress the power to limit the courts’ jurisdiction. Congress thus can constitutionally prevent any federal court from hearing habeas petitions by excepting habeas petitions from the Supreme Court’s appellate jurisdiction and withdrawing all habeas jurisdiction from the lower courts.
Those who argue that Congress may not limit such jurisdiction typically point to external limits—limits outside Article III. Specifically, the Suspension Clause prohibits Congress from suspending the writ of habeas corpus except “when in Cases of Rebellion or Invasion the public Safety may require it.” Because caselaw prevents state courts from issuing habeas writs to federal officials, removing federal habeas jurisdiction would leave a federal prisoner with no forum to litigate a habeas claim. The removal of all federal habeas corpus jurisdiction, then, would effectively act as a suspension of the writ.
When faced with these questions, the Supreme Court has applied a robust (to say the least) canon of constitutional avoidance. For instance, in the 2001 case St. Cyr, the Court tortured the language of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to find that the acts did not preclude federal district court jurisdiction over habeas petitions brought by certain aliens.
The Court maintained this tack until it decided Boumediene in 2008. There, Congress stripped both the federal and state courts from hearing any habeas petition from an alien determined to be an enemy combatant. The law was airtight, precluding any judicial attempts at constitutional avoidance. With its back against the wall, the Court ruled that enemy combatants have the constitutional privilege of habeas corpus and that they may invoke the Suspension Clause. And because the law failed to provide “an adequate and effective substitute for habeas corpus,” it “operate[d] as an unconstitutional suspension of the writ.” In other words, the Suspension Clause acts as an external limit on Congress’s Article III powers.
Scalia’s dissent in St. Cyr, however, provides a better theory of the relationship between the Suspension Clause and Congress’s Article III powers. Under Scalia’s theory, Congress could eliminate all federal habeas jurisdiction without running afoul of the Suspension Clause, as the clause only protects the existing statutory right (or “privilege”) to habeas corpus. As he stated, “[a] straightforward reading of [the Suspension Clause’s] text discloses that it 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.”
Scalia began with the premise that Congress cannot suspend the statutory right of habeas corpus unless Congress first creates the statutory right. Thus, suspension of the right is distinct from the right’s existence. But nothing in the Constitution compels Congress to create the right. And if nothing compels Congress to create the right, “then surely Congress may subsequently alter [or eliminate] what it had initially provided for.” The Suspension Clause does not serve as a bar. If it did, the clause “would be a one-way ratchet that enshrines in the Constitution every grant of habeas jurisdiction,” a result that would be “too absurd to be contemplated.”
In sum, the Suspension Clause cannot be invoked to prevent the alteration or elimination of the statutory right; it only controls Congress’s ability to temporarily prevent the exercise of the right as it exists at any given time. Congress may therefore alter or eliminate federal court habeas jurisdiction without running afoul of the Suspension Clause.
This theory has historical roots. Four state ratifying conventions noted that the Suspension Clause is written in negative terms and consequently objected that the Constitution failed to provide an affirmative right to habeas. Moreover, the First Congress thought it necessary to affirmatively create a statutory right to habeas corpus. And Chief Justice Marshall acknowledged in Ex parte Bollman that “the power to award the writ [of habeas corpus] by any of the courts of the United States, must be given by written law.” This evidence suggests that the Founding Generation believed that the Suspension Clause does not confer a right to habeas corpus but merely protects the statutory right as it exists at any given time from arbitrary suspension.
With Scalia’s framework in mind, Boumediene becomes an easy case—and the Court got it wrong. Congress did not withhold the writ for a limited duration; instead, it eliminated the statutory right. Thus, Boumediene could not invoke the Suspension Clause. Curiously, neither Scalia nor Chief Justice John Roberts, who joined Scalia’s dissent in St. Cyr, raised this theory in their dissents. Instead, Scalia focused on the status of the alien who asserted constitutional protections, and Roberts focused on whether the law provided an “adequate substitute” to habeas corpus.
Regardless of Boumediene’s actual outcome, Scalia’s theory announced in St. Cyr best reconciles the language of the Suspension Clause with the text and history of Article III. And while it might jar the American constitutional conscience to learn that the Suspension Clause does not guarantee the right of habeas at the federal level, as Scalia said, “that is not the majoritarian abuse against which the Suspension Clause was directed.”