Originalism and the Suspension Clause in DHS v. Thuraissigiam

The majority and dissent vigorously disagree about the role history should play in this Suspension Clause case


A few moments ago, I blogged about Department of Homeland Security v. Thuraissigiam. This case turned on the scope of the Suspension Clause. Justice Alito wrote the majority opinion. Justice Sotomayor wrote the dissent. They disagree, vigorously, about the proper role history should play when interpreting the Suspension Clause.

The majority required the Thuraissigiam to identify a specific case that supports his claim for relief. A close analogy is not enough.

Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here. The dissent instead contends that "the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent," and then discusses cases that are not even close to this one.

In dissent, Justice Sotomayor writes that Boumediene does not require such a close historical fit:

But as the Court implicitly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never demanded the kind of precise factual match with pre-1789 case law that today's Court demands.

For sure, Justice Kennedy's framework in Boumediene was far more fluid. Justice Sotomayor writes:

But this Court has never rigidly demanded a one-to-one match between a habeas petition and a common-law habeas analog. Boumediene is even clearer that the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent. There, the Court concluded that the writ applied to noncitizen detainees held in Guantanamo, despite frankly admitting that a "[d]iligent search by all parties reveal[ed] no certain conclusions" about the relevant scope of the common-law writ in 1789.… But crucially, the Court declined to "infer too much, one way or the other, from the lack of historical evidence on point." Instead, it sought to find comparable common-law habeas cases by "analogy."

I understand Justice Sotomayor's frustration. I don't think this decision is consistent with Boumediene. But Boumediene is no longer a viable precedent. Justice Kennedy is gone, and Chief Justice Roberts sees no institutional need to retain it. It will be whittled away.

Justice Sotomayor describes the majority's test as an exercise in futility. Immigration law is largely a novel invention. It would be impossible to find any relevant caselaw:

To start, the Court recognizes the pitfalls of relying on pre-1789 cases to establish principles relevant to immigration and asylum…. The Court nevertheless seems to require respondent to engage in an exercise in futility. It demands that respondent unearth cases predating comprehensive federal immigration regulation showing that noncitizens obtained release from federal custody onto national soil. But no federal statutes at that time spoke to the permissibility of their entry in the first instance; the United States lacked a comprehensive asylum regime until the latter half of the 20th century. Despite the limitations inherent in this exercise, the Court appears to insist on a wealth of cases mirroring the precise relief requested at a granular level; nothing short of that, in the Court's view, would demonstrate that a noncitizen in respondent's position is entitled to the writ. See also Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens (1998) (noting the inherent difficulties of a strict originalist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding).

In response, Justice Alito faults Justice Sotomayor for scoffing at originalism:

The dissent reveals the true nature of its argument by suggesting that there are "inherent difficulties [in] a strict originalist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding." But respondent does not ask us to hold that the Suspension Clause guarantees the writ as it might have evolved since the adoption of the Constitution. On the contrary, as noted at the outset of this discussion, he rests his argument on "the writ as it existed in 1789."

Justice Alito also rejects a "living" model of the Suspension Clause, which Justice Breyer advocated for in his concurrence:

What the dissent merely implies, one concurring opinion states expressly, arguing that the scope of the writ guaranteed by the Suspension Clause "may change 'depending upon the circumstances' " and thus may allow certain aliens to seek relief other than release. Post (BREYER, J., concurring in judgment) (quoting Boumediene). But that is not respondent's argument, and as a general rule "we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present." United States v. Sineneng-Smith (2020).

Justice Sotomayor has produced another impressive historical dissent, akin to her Promesa dissent.

I was surprised Justice Kagan joined Justice Sotomayor's dissent. Here, Kagan is throwing down a gauntlet against originalism. I would think the savvier move would be for her to join Breyer's more moderate dissent.

NEXT: Where does DHS v. Thuraissigiam stand?

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  1. So I assume Justice Alito agrees that, under an originalist approach to the 2nd amendment, anything that’s not a musket can be banned?

    1. I don’t believe the 2nd Amendment refers to the right to keep and bear muskets. It’s keep and bear “arms”, and even when the Constitution was ratified there existed continuing advances in arms. It’s no different than how protecting electronic media under the First Amendment if entirely consistent with originalism. The intent is clear and the language itself permissive. No need for penumbras and emanations to find heretofore unknown constitutional rights.

      Complaints about originalism are nothing new, but references to the 2A are just juvenile and lazy. You comment regularly, and can do much better.

      1. Of course no penumbras but yet it says arms. So why not limit bullets? Or the time it takes to get a weapon? Or tie owning a gun to being a part of a militia? But of course, the response will be the amendment says the right to bear arms shall not be infringed. This is used by originalist to say that no regulations on guns are allowed. Yet in other cases like pornography, fighting words, false statements of facts they can find a way around “congress shall make no law abridging speech”.

        Not trying to say one view is right and the other wrong. I am just saying, we twist the constitution to fit our views.

        1. At the time of the Constitution, every able-bodied male was part of the militia. Don’t tempt the originalists on SCOTUS about the 2A.

          Every judicial decision requires some interpretation, that’s the whole point of judicial review.

          However, some “interpretations” are FAR more expansive than others, and it’s not generally too difficult to determine who subscribes to originalist vs. living Constitution thinking.

          Recall that without penumbras and emanations abortion rights would be a matter for states to decide.

          1. Substantive due process was used by the champion of originalism Scalia in Bush v. Gore to decide an election. He didn’t even bother with penumbras. When it suits their politics they drop the pretenses.

        2. Conservatives are wrong on those other points and right on the 2A. Which is… the libertarian position, woh.

          1. No right is absolute. Even the 2nd amendment is subject to limitation. The fact that the court refuses to hear 2nd amendment cases may show the court doesn’t think states have crossed the line when it comes to the 2nd amendment.

      2. Obviously it says arms, but that clearly doesn’t mean those bits of my body between my shoulders and my wrists. It’s a word that needs to be interpreted. And applying an originalist methodology, Alito-style, unless you can point to a pre-1789 court judgment upholding someone’s right to own an AR-15, you don’t have a constitutional right to own one.

        To be clear, I think this approach to the 2nd amendment is dumb, but so is Alito’s approach to the suspension clause. Same logic, equally dumb.

        1. I don’t think Alito is a true originalist. I think he is a pragmatist masquerading as an originalist.

        2. You can’t apply originality to “arms” and forbid AR-15s (or machine guns, for that matter) unless you also ban powered printing presses and the internet; even powered printing presses are a far more advanced version of 1789 technology than machine guns, and the internet has no analogy to anything from 1789.

          1. Yes, the Internet would have been a good example too!

    2. Technically, a 155 mm Howitzer is a musket… 🙂

      1. Muskets are muzzleloaders. Maybe you are thinking of mortars.

  2. If you’re going to effectively narrow a precedent, you really should say so.

  3. Alito is hardly an originalist. I mean, he says he is, but he has always been on of the most pragmatic judges on the court, just from a conservative side. See the Westboro Baptist church case

    But this is just a ridiculous view of originalism in the majority. Originalism does not say in order to win a case you need to cite an 18th century case on the same thing. Its says, follow the principles, logic, and understanding of the constitution as it was originally understood by the public, and apply that best you can to new cases in a modern setting.

    I happen to believe that the majority opinion agrees with those principles, but the need to cite a 17th century case is insane.

    1. Alito is not an originalist, and doesn’t pretend to be.

      He is, however, an instructive illustration for those on the left who try to say that originalist isn’t actually a constraining methodology.

      1. I had no idea Alito wasn’t an originalist. Huh.

        Upon looking into it, I see some weak branding ‘practical originialist’ ‘inclusive originalist’ but it’s pretty clear he is *not*. Scalito indeed.

        My only excuse is that I…was in law school when he was being nominated, and listened to the nomination hearing raptly.


      2. “Alito is not an originalist, and doesn’t pretend to be.”

        Justice Alito labeled himself a “practical originalist.”

    2. I give him a pass on that. Alito has served in the military. I don’t think he could swallow what the Westboro baptist church was doing.

  4. I read the decision, God help me. Got to disagree on Blackman’s read on it. The decision revolved around whether Thuraissigiam’s remedy is release from detention. It’s not, so it’s not a habeas case.

    The decision didn’t revolve around how closely Thuraissigiam’s situation matches a precedent (18th c, final era or Boumediene). It revolved around what kind of remedy a habeas writ can provide. (Hint: It always involves release from detention.)

    1. That was my reading too. He wasn’t seeking release from detention. He was seeking a stay of deportation. The case held the Suspension Clause does not apply to deportation. The remedy habeas corpus gives is release from detention. If you are released outside the country, you are released. So you’ve gotten your remedy and can’t complain further.

      1. ReaderY…Thanks for that critical clarification. Now I understand the crux of the ruling.

      2. That seems right. (Although maybe you should be able to complain about deportation in some other way.)

        1. Well, OK. But is it just “release?”

          Suppose a prisoner is ordered released by a habeas decision.

          Can the government drive him out into the desert, push him out of the car without food or water, and drive off? Isn’t that analogous to Alito’s snarky remark about a passenger cabin, at least according to Thuraissigiam’s allegations?

          1. Depends. Did they find him in a desert, without food or water?

            No, I’m joking, clearly they can’t do that. But return to your country of origin is hardly the same as being dropped in a desert without food or water, unless maybe you’re a serious, “will be promptly killed if returned,” refugee.

            1. Of course, that is Thuraissigiam’s (give thanks for copy-paste) claim.

              I guess we’re going to find out.

    2. This makes it vastly more clear.

      I wonder if Blackman was being a bit obtuse to avoid trampling on his case summary.

      1. There are academics who seem to think that if you can make things more complicated and obtuse than other people, that means you must be smarter than they are. Same with using bigger words and longer sentences.

        With all due respect Professor Blackman has occassionally shown some tendencies in that direction.

  5. I remember Boumediene from con law. It was a confusing mess that everyone in the class detested trying to interpret and apply on the mid term. Sadly, the professor didn’t accept “try to write things that make Kennedy feel sad” as con law.

  6. “What the dissent merely implies, one concurring opinion states expressly, arguing that the scope of the writ guaranteed by the Suspension Clause “may change ‘depending upon the circumstances’ ” and thus may allow certain aliens to seek relief other than release. Post (BREYER, J., concurring in judgment) (quoting Boumediene). But that is not respondent’s argument, and as a general rule “we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” United States v. Sineneng-Smith (2020).”

    Is this Alito attacking Robert’s DACA decision?

    1. I find this proposition dubious. If one party says the law is A, and the other party says it is B, a court is entitled to say both parties are wrong and the law is really C.

      The parties can’t dictate what the law is to the court. Their arguments are advice. They aren’t binding. If courts always had to pick one of the parties’ view, it would be easy to change the law through collusive lawsuits. What need would there be for a legislature, written law codes, or precedent in a system where parties can simply make up whatever law they want and judges are forced to accept it?

      1. Don’t neglect there are amici too, who will all have their take on the law. Some combination of arguments probably has the right analysis.

        Robert’s DACA case decision was basically magicked up out of thin air. No one saw that reasoning coming.

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