Jonathan Hafetz (Seton Hall Law School) has posted The Suspension Clause after Department of Homeland Security v. Thuraissigiam (St. John's Law Review , Vol. 95, No. 2, 2022) on SSRN. Here is the abstract:
This article examines the Supreme Court’s 2020 decision in Department of Homeland [Security] v. Thuraissigiam. In Thuraissigiam, the Court upheld Congress’s elimination of habeas corpus review over a challenge by an asylum seeker from Sri Lanka, who was seized by federal agents just inside the U.S.-Mexico border. The Court concluded that the Constitution’s Suspension Clause did not apply to the petitioner because the right he was seeking—to remain in the United States under the nation’s immigration laws—fell outside the historical core of the Suspension Clause, which was limited to challenging detention as such.
The article argues that the Supreme Court erred in several key respects, including by misreading the historical record and misconstruing its own precedents. The article also describes how Thuraissigiam, if read broadly, could limit future habeas review not only over the removal of immigrants seized in the United States, but also over other government restraints on liberty that do not seek continued detention as their purpose, from the extradition of criminal suspects to the transfer of military prisoners. While it injects new uncertainty into formerly settled areas of habeas jurisprudence, Thuraissigiam ultimately decided very little. The article explores several ways that—notwithstanding Thuraissigiam—courts can and should guarantee meaningful judicial review of detention in noncitizen cases and to ensure the Suspension Clause remains a meaningful limit on a variety of custodial restraints. Above all, the article explains why courts should view the Suspension Clause as protecting evolving understandings of habeas corpus rather than one frozen in time at the nation’s Founding to ensure that it remains capable of reaching a broad range of liberty deprivations.
