The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Supreme Court decided Department of Homeland Security v. Thuraissigiam. I have now had a chance to read the entire 98-page decision. We have edited the case down to 19 pages for the Barnett/Blackman supplement. Please e-mail me if you'd like a copy: josh-at-josh-blackman-dot-com.
Between 2004 and 2008, the Supreme Court decided several cases involving Guantanamo Bay detainees. Since Boumediene v. Bush (2008), the Supreme Court has largely ignored Guantanamo Bay. Thuraissigiam is the first major decision to discuss the Suspension Clause in nearly a decade. I'm on the fence whether it warrants a place in our constitutional law casebook.
On the plus side, the composition of the Court has changed significantly since Boumediene was decided. Critically, Justice Kennedy was replaced by Justice Kavanaugh. The majority reads Boumediene quite narrowly. In dissent, Justice Sotomayor accuses Justice Alito of ignoring that 5-4 decision. She's probably right. Thuraissigiam provides a current, and accurate statement of the Court's suspension clause jurisprudence.
Also, this case is far more relevant to attorneys today. Few lawyers will ever work on detainee rights. But many law students will work on immigration law. This case is significant. Moreover, the Due Process Clause analysis will likely prove more important than the Suspension Clause analysis. We may soon see the Trump Administration release the long-awaited expedited removal policy. I first blogged about it in February 2017, and tweeted about it in July 2019.
On the negative side, it isn't clear how "canonical" this case will be. The doctrine may be limited to the unique contexts of aliens who crossed the border, and were immediately apprehended. Justice Sotomayor points out how the Ninth Circuit will likely interpret the case:
Perhaps recognizing the tension between its opinion today and those cases, the Court cabins its holding to individuals who are "in respondent's position." Presumably the rule applies to—and only to—individuals found within 25 feet of the border who have entered within the past 24 hours of their apprehension. Where its logic must stop, however, is hard to say.
26 feet + 25 hours= Due Process.
But it is a good case to study. I'll write some more about it.