As my co-blogger Ilya Somin notes below, White House aide Stephen Miller commented today that the Trump Administration is "actively looking at" whether it would be possible to suspend the writ of habeas corpus on the grounds that the country is suffering an "invasion" by illegal immigrants.
My own view is that the White House can look at this question all it wants, but it is ultimately up to Congress whether the writ should be suspended (at least during times of peace). This is clear form the Constitution's text and structure. The suspension clause is in Article I, section 9, as among several enumerated constraints on legislative power. It is an interesting question whether Courts can review a legislative suspension of the writ, but I think it is relatively clear that the Executive cannot do so unilaterally.
I also think that the Supreme Court has fairly consistently operated under this assumption. Consider Hamdi v. Rumsfeld. In that case there was unanimous agreement that Congress had not suspended the writ, and so the question was whether the federal government could detain Hamdi (an American citizen alleged to be an enemy combatant captured in Afghanistan) in the United States without putting him on trial.
Justice Scalia, joined by Justice Stevens, concluded that the answer was "no," absent suspension of the writ of habeas corpus by Congress.
Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, § 9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge.
In other words, the Constitution's full procedural protections apply unless and until Congress suspends the writ.
While other justices did not agree with Justice Scalia on the merits, a majority of the justices indicated that they too believe it is for Congress to determine whether the writ should be suspended.
Justice O'Connor's plurality opinion, for example, noted that the write exists as a check on executive power unless and until Congress suspends it. Consider these two passages:
Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U.S. Const., Art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e.g., Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755; Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law.
Unless Congress suspends the writ, it remains a check on the Executive. This is a claim that would be nonsensical if the Executive could suspend the writ unilaterally. As she wrote later in her opinion:
Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. See St. Cyr, 533 U.S., at 301, 121 S.Ct. 2271 ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest"). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.
Even Justice Thomas, who embraced an incredibly expansive view of the Executive Branch's authority to detain enemy combatants in an armed conflict, wrote as if it is solely up to Congress whether the writ should be suspended. Indeed, this formed part of the basis for his disagreement with Justice Scalia, as if suspension of the writ was necessary to detain Hamdi, Justice Thomas wrote, Congress would have to violate the Constitution (by suspending the writ absent the required predicate) to achieve the desired result.
Justice SCALIA apparently does not disagree that the Federal Government has all power necessary to protect the Nation. If criminal processes do not suffice, however, Justice SCALIA would require Congress to suspend the writ. See ante, at 2673. But the fact that the writ may not be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it," Art. I, § 9, cl. 2, poses two related problems. First, this condition might not obtain here or during many other emergencies during which this detention authority might be necessary. Congress would then have to choose between acting unconstitutionally4 and depriving the President of the tools he needs to protect the Nation. Second, I do not see how suspension would make constitutional otherwise unconstitutional detentions ordered by the President. It simply removes a remedy.
So even if the White house is convinced that the United States is currently subject to an "invasion" (a view I reject), I believe there is broad (if not universal) agreement that it would be solely up to Congress to suspend the writ.
UPDATE: On the original meaning of the suspension clause, see John Harrison, "The Original Meaning of the Habeas Corpus Suspension Clause, the Right of Natural Liberty, and Executive Discretion."
