Where does DHS v. Thuraissigiam stand?

The Court's first major Suspension Clause case since Boumediene.


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.


NEXT: The Legal Academy, Episode 6: Pam Karlan

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  1. You’re joking at the end, but only barely. If I were in Mexico giving advice to those crossing the boarder, I’d be telling them, “If you get caught your first day within 25 feet of the border, you have essentially no rights with US courts. But, if you can find a place to hide safely for a few days, then you may have many more rights. And, if you *are* caught that first day, then run like hell in the direction opposite the boarder, to get as much distance between you and the boarder as you can.”

    Will those incremental things make a difference? Probably to the 9th and maybe other circuits, who will be looking for a way to avoid this (deliberately, shockingly-narrow) precedent.

    [Sort of like the liberal obverse to QI . . . “Well, the cop already knew that beating an unarmed suspect 35 times with his baton was unconstitutional. But no court has spoken to what if it’s only hitting 31 times, so QI still applies in this case.” ]

    1. If I were in Mexico giving advice to those crossing the border, I’d be telling them

      “Do it legally, with a visa, green card, or other papers that allow you to legally immigrate.”

    2. “you have essentially no rights with US courts.” Other than the 3 stages of review Thuragassim requested and received he had zero rights.

      1. “you have essentially no rights with US courts.” Other than the 3 stages of review Thuragassim requested and received he had zero rights.

        Nor should he. No more than I have rights in Mexico.

    3. It literally boggles the mind that people think a non-citizen, considering sneaking across the border, has some right under the US Constitution to both get there and stay if he or she isn’t caught.

      It defies all common sense.

  2. Justice Sotomayor points out how the Ninth Circuit will likely interpret the case

    Don’t push the liberal 9th Circuit trope; you know better.

    1. Oh please, the term ‘Nutty Ninth’ is well grounded.

      Now that there is a 16-13 split, perhaps rationality will emerge.

  3. The decision is based on Munaf, not Boumediene and has nothing to do with Suspension. From the decision:
    Like the habeas petitioners in Munaf, respondent does not want “simple release” but, ultimately, the opportunity to remain lawfully in the United States. That he seeks to stay in this country, while the habeas petitioners in Munaf asked to be brought here from Iraq, see post, at 19–20 (opinion of SOTOMAYOR, J.), is immaterial. In this case as in Munaf, the relief requested falls outside the scope of the writ as it was understood when the Constitution was adopted.
    As the decision notes elsewhere, the Government would be happy to release him and send him home (which is all the Boumediene detainees wanted and got), but while statutory habeas at one time (but no longer) provided for judicial review of removal, common law habeas (which is all the Suspension Clause protects) is limited to release from detention.

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