Beyond Habeas: Stripping the Federal Courts of Jurisdiction to Hear Alien-Detainee Treatment Claims

Abstract

By enacting 28 U.S.C. 2241(e)(1) Congress stripped the judiciary of jurisdiction to hear habeas claims of alien-detainees. Boumediene held that this statute represented an unconstitutional commandeering of judicial power to provide habeas and that the judiciary had the jurisdictional authority to review the cause of detention as well as the Executive’s power to detain.One of the major questions left open in the wake of the Boumediene decision concerns 28 U.S.C. § 2441(e)(2), another jurisdiction-stripping provision, which prohibits courts from adjudicating on alien-detainee claims involving detention, transfer, treatment, trial, or conditions of confinement. Section 2441(e)(2) does provide for some process in the form of Combatant Status Review Tribunal (CSRT) hearings. The DC circuit exercises exclusive jurisdiction over appeals from the CSRTs. The scope of the DC circuit’s review, however, is limited to determining if the CSRT correctly applied its own procedures, not the actual claims of the detainees. Thus, no Article III court has jurisdiction to adjudicate on the merits of an alien-detainee’s claims. After Boumediene, § 2441(e)(2) might seem to present an easy case. Congress enacted a statute that strips jurisdiction in much the same way as the one struck down in Boumediene. Thus, on separation of powers grounds, the Court should find that any statute stripping all the courts of jurisdiction violates the principles set out in Bouemediene and represents an unconstitutional usurpation of judicial power. Unfortunately, there is a strong argument that jurisdiction to hear a claim of habeas corpus is fundamentally different than jurisdiction to hear other claims, particularly for separation of powers concerns. The Court in Boumediene noted such a difference and attempted to limit its holding to the habeas context. Moreover, the lower courts have interpreted the Bouemediene holding to be limited to habeas and have refused to extend the holding to § 2441(e)(2). Thus, rather than assume that Bouemediene provides a framework that can now fit all future claims, this note discusses the unconstitutionality of § 2441(e)(2) independently of the Court’s holding in Boumediene. This requires revisiting the debate surrounding the Madisonian Compromise and the Exceptions Clause of Article III in formulating the argument that § 2441(e)(2) represents an unconstitutional appropriation of judicial power.