Suspension Clause Research Articles

Designing suspension clauses to defend democracy: lessons from negotiating the OAS's Washington Protocol

Nine regional international organisations (RIOs) have adopted suspension clauses to defend democracy since 1990, but we have a weak historical understanding of the conditions under which these clauses are designed. The literature has advanced numerous arguments about delegation, generally based on power, preferences and norms. This article asks under what conditions RIO member states support suspension clauses for democracy enforcement, and what shapes their preferences over the design of said clauses. Taking the lock-in hypothesis as a starting point, I offer an alternative explanation to that of regime type: the nature of a state’s anti-democratic experiences determines its preferences for expansive or restrictive multilateral democracy enforcement. States that suffered from external threats to their political regime will prefer a narrow scope and restricted use of suspension clauses, while those that suffered primarily from internal threats will be in favour of a broader role for RIOs and a more readily applicable suspension clause. I test the plausibility of this explanation in a case study which reconstructs the negotiations for the first such suspension clause in this era, the 1992 Washington Protocol amending the Charter of the Organization of American States (OAS).

Reading Regents and the Political Significance of Law

Reading Regents and the Political Significance of Law

Conservative Progressivism in Immigrant Habeas Court: Why Boumediene v. Bush Is the Baseline Constitutional Minimum

This article opens with a presentation of the six baseline holdings of Boumediene v. Bush as an expression of the basic constitutional minimum required under the Suspension Clause for all habeas cases. Then it describes the Circuit split that gave rise to DHS v. Thuraissigiam, which distinguished Boumediene according to the Court’s Conservative Progressive ideology. In Thuraissigiam, this ideology was symbolized by Landon v. Plasencia that favored Mathews v. Eldridge post-racial balancing tests to real justice. Then this article exposes the reasons why Thuraissigiam should be distinguished in all future cases, as Justice Sotomayor contended, according to its highly individualized, narrow set of circumstances. For as Sotomayor wrote in dissent, Thuraissigiam is “nothing short of a self-imposed injury to the Judiciary, to the separation of powers, and to the values embodied in the promise of the Great Writ.” As such, its rationale should not be followed or repeated, as it may soon fall into the same kind of disrepute as cases like Korematsu, Plessy, and Buck v. Bell. In an unrelated matter USAID v. Alliance for Open Society, the Court attempted to rewrite the holdings of Boumediene as the opposite of what they were sub silentio. The Court should not be allowed to apply Boumediene as if it held the opposite of what it actually held. So fundamental is the holding of Boumediene to basic liberty in America that if the Court fails to rediscover the baseline holdings of Boumediene for whatever reason, it is possible the nation could founder. This article concludes that the legal community should resist the recent changes the Court made to immigrant habeas corpus. If the Great Writ can be suspended by the government without a Declaration of War or an actual invasion on U.S. soil, then the U.S. Constitution is overridden. The legitimacy of the nation is at stake and the legal community should not falter in their duty to uphold the U.S. Constitution as a matter of loyalty and integrity regardless of how those in power misbehave or embarrass themselves by misrepresenting Boumediene’s six holdings.

The Supreme Court's Attack on Habeas Corpus in DHS v Thuraissigiam

The Supreme Court's June 2020 opinion in Department of Homeland Security v. Thuraissigiam unjustifiably reopens settled questions about the Habeas Corpus Suspension Clause of the U.S. Constitution, and endangers everyone -- U.S. citizens and noncitizens alike.

Overcoming the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus

Trump’s draconian immigration policies threatened our sense of common decency so fiercely that few Americans noticed that immigrants also lost all their most important cases in the U.S. Supreme Court during the Trump era. Perhaps their worst loss to date was DHS v. Thurassigiam, which was a parade of horrible firsts. For example, Thuraissigiam was the first SCOTUS decision to judicially suspend the writ of habeas corpus to any class of person with no actual insurrection or invasion in the country. Thuraissigiam was also the first U.S. Supreme Court decision to suspend the writ without first attempting to interpret the law to avoid conflict with the Suspension Clause, and it is the first to decide not to overrule such a law as Marbury v. Madison requires. In the habeas context tracing back to 1789, immigrants were never treated this way. One cannot find judicial treatment this bad of any other class of person throughout our history, including African American slaves, women, our enemies in WWII, the insurrectionists of the Civil War, among other likely classes for mistreatment. Calling Thuraissigiam the “Dred Scott” of our day, despite the obvious similarity of degrading the constitutional rights to those the Court decides are not U.S. Citizens, does not capture the size of the Court’s blunder. Dred Scott’s habeas corpus companion Ableman v. Booth preempted State Court habeas for African Americans, but did not consider whether the Fugitive Slaves Law suspended federal judges from hearing the writ. In Thuraissigiam, the Court did not interpret a law external to the Court was a suspension, but rather owned its ruling that certain immigrants have no privilege to assert habeas corpus as a self-imposed, judge made rule. This article was written to help immigration attorneys in perhaps our most shameless era access habeas corpus for their clients. Below are six approaches inspired by Boumediene v. Bush, according to which Thuraissigiam may be objectively distinguished. This article also examines common misconceptions about how Immigration Court should be addressed in a habeas proceeding by petitioners and a description of leading habeas law in support of immigration habeas petitions.

A Suspended Death Sentence: Habeas Review of Expedited Removal Decisions

Expedited removal allows low-level immigration officers to summarily order the deportation of certain noncitizens, frequently with little to no judicial oversight. Noncitizens with legitimate asylum claims should not find themselves in expedited removal. When picked up by immigration authorities, they should be referred for a credible fear interview and then for more thorough proceedings. Although there is clear congressional intent that asylum seekers not be subjected to expedited removal, mounting evidence suggests that expedited removal fails to identify bona fide asylum seekers. Consequently, many of them are sent back to persecution. Such decisions have weighty consequences, but they have remained largely immune from judicial review. This is in part due to a provision of expedited removal, 8 U.S.C. § 1252(e)(2), that prevents the federal courts from hearing habeas petitions that challenge the decisions made in expedited removal. Circuit courts are split on whether this provision violates the Suspension Clause based on diverging interpretations of when noncitizens become entitled to habeas rights. This Note argues that, based on the Supreme Court’s interpretation of the Suspension Clause and the historical purpose of habeas review, noncitizens who are physically in the territorial United States are entitled to habeas rights. As a result, 8 U.S.C. § 1252(e)(2) is unconstitutional. Asylum seekers in the United States are entitled to habeas review of their expedited removal determinations unless Congress enacts an adequate substitute for this review.

Ništavost i nepunovažnost ugovora kao posledica kršenja prava konkurencije EU i pravila o javnim nabavkama

The presented paper will focus on the extent of requirements of EU law for nullity or ineffectiveness of contracts in specific areas linked to functioning internal market: competition law, including agreements restricting competition, abuse of dominant position, merger control and state aid, and rules of public procurement. The scope of EU-law-based nullity is quite limited and only Art. 101(2) TFEU provides expressed nullity of agreements restricting competition. In the case of abuse of dominance, nullity of contract constituting abuse of dominant position can be drawn from the principle of effectiveness of EU law. Validity or nullity of contracts violating suspension clause in merger control regime are assessed in two periods - before decision on merger and after decision of the Commission. State aid regime cannot rely on EU-law-based nullity of contracts that violate EU state aid rules. Finally, public procurement rules appear the most complex in this context since they operate with the "right" of the contracting authority to terminate contract and power of revision authority to declare "ineffectiveness" of illegally awarded contract, and therefore revision of directives is suggested.

Looking Backward and Forward at the Suspension Clause

Review of Amanda L. Tyler's Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay.

MAGNA CARTA AND THE AMERICAN POLITICAL IMAGINATION: TWO INSTANCES OF HABEAS CORPUS VINDICATED

Magna Carta has long been understood as a source of inspiration for the U.S. Constitution, and especially its enshrinement of the writ of habeas corpus — the right of any prisoner to test his or her detention according to the law. In the “Suspension Clause” of the U.S. Constitution (Article I, Section 8), Congress is granted permission to suspend habeas corpus only “when in cases of Rebellion or Invasion the public Safety may require it.” This article surveys two failed attempts by the U.S. government to suspend the writ of habeas corpus. The first (which was actually the very first such attempt) was in 1807 and followed revelations of the so-called Burr Conspiracy. The second (incidentally the most recent in American history) occurred during the War on Terror and culminated with the Supreme Court’s decision of Boumediene vs Bush in 2008. A close examination of these two historical episodes reveals just how different were the constitutional processes of the early republic and contemporary times. Additionally, comparing the uses of Magna Carta during the two episodes demonstrates marked changes in American political culture. Historical consciousness, vital to early Americans’ understanding of their political system, has shifted to an elite level. Likewise, the protection of fundamental liberties has migrated from the popular branch of government (Congress) to the elite one (the Supreme Court). This article considers the implication of this shift in both constitutional processes and historical consciousness.

All the Laws But One: Civil Liberties in National Emergencies

Former Chief Justice William Rehnquist’s book All the Laws But One is an account of the history of civil liberties during times of war and examines cases where presidents have suspended the law in the name of national security. Since the Constitution’s Suspension Clause only applies “when in cases of rebellion or invasion,” Rehnquist’s work discusses wartime powers, focusing on cases involving the Civil War, World War I, and World War II. On the other hand, events of the last century, including threats of severe economic collapse, natural disasters such as earthquakes, destructive hurricanes, and tsunamis, outbreaks of infectious diseases or other public health emergencies, suggest that governments may need to exert wartime-style powers to manage these potential disasters. Thus, state and federal governments may be confronted with the need to curtail civil liberties through confiscation of property, arbitrary detentions, mandatory evacuations, mandatory vaccinations, or other forced measures. This paper seeks to examine the constitutionality of such measures in the absence of direct rebellion or invasion. Through a review of relevant history, including Supreme Court and other judicial opinions, executive actions, and policy decisions, this paper ultimately concludes that weighty precedents already exist for abuse of civil liberties outside of wartime. Furthermore, the state and federal governments would not likely hesitate to use — and abuse — these precedents in an attempt to exert control in the midst of such emergency situations. Ultimately, these abuses have made a mockery of the rule of law. We should not be surprised when it happens again.

State of Exception: Legal Grounds and Challenges

This paper aims to contribute to the discussion about the legal grounds of the state of exception, its origins and transformation in contemporary legal systems. The law in Ancient Rome demonstrate the beginning of traditional model of the state of emergency, which can be called constitutional dictatorship. Later it evolved and travelled to modern constitutions. Main principles of the traditional state of emergency that came from Ancient Rome to nowadays be the following: temporality, purpose of restoring the status quo, suspension of rights, prohibition to change constitution. These principles dominate in contemporary democratic constitutions and international law. Legal order should also make sense in cases where security is under threat and certainty is distorted by “exceptional” or “emergency” situations that surpass the notion of normality. However, legal system requires normal or ordinary conditions which make it possible to foresee the consequences of particular act. The focus of this analysis is the ways in which the state comprehends the lack of certainty that occur in emergency. The issue with present emergencies is that we reject the idea of giving unlimited power to state authorities and since it is unpredictable what measures may be necessary it becomes even more complicated to deal with emergencies. The shift in democratic states is observed from the traditional model of state of emergency to the unofficial state of emergency (legislative) model. The reasons of this change are associated with the complex procedure of the invocation of state of emergency and the altered view of the suspension clause, the ways in which its notion became narrower. Advocates of the narrow view of the suspension clause assert that it does not give any new emergency powers to the government. The outcomes of this process is also analysed in this paper. In this context the increasing role of the judiciary is indicated. Cases of the Constitutional Court of the Republic of Lithuania, the House of Lords in the United Kingdom and the European Court of Human Rights are analysed. Judiciary views of the emergency powers and suspension clause are illustrated. Case law demonstrates that state’s actions in crisis are placed under scrutiny. However, courts granted state authorities with a wide margin of appreciation in the matters of emergency regulation. Courts deal with complex situations when they have to evaluate state actions in the state of exception on the grounds of ordinary law. Finally, contemporary challenges to liberal democracies are demonstrated, as well as the permanent threat of emergency that we live in. The state of emergency questions the grounds of state’s authority, its competence, the relations between law and politics. Some observations regarding the situation in the Eastern part of Ukraine are offered. Changing perspectives of contemporary crises in states and their courts are analysed.

The power of habeas corpus in America: from the king's prerogative to the war on terror

Despite its mystique as the greatest Anglo-American legal protection, habeas corpus' history features power plays, political hypocrisy, ad hoc jurisprudence, and failures in securing individual liberty. This book tells the story of the writ from medieval England to modern America, crediting the rocky history to the writ's very nature as a government power. The book weighs in on habeas' historical controversies - addressing its origins, the relationship between king and parliament, the US Constitution's Suspension Clause, the writ's role in the power struggle between the federal government and the states, and the proper scope of federal habeas for state prisoners and wartime detainees from the Civil War and World War II to the War on Terror. It stresses the importance of liberty and detention policy in making the writ more than a tool of power. The book presents a more nuanced and critical view of the writ's history, showing the dark side of this most revered judicial power.

The War on Terror as a Metaphor for Immigration Regulation: A Critical View of a Distorted Debate

The “war on terror” represents a powerful metaphor reaching into the everyday lives of millions of non-U.S. citizens and citizens alike, both domestically and abroad. The “war” has skewed the debate, specifically regarding immigration regulation and reform. It is especially pernicious because it operates, on an unconscious level, on our unstated assumptions about immigrants and immigrant populations. In this Article, the authors begin with a discussion of the so-called “anchor” babies, now transmogrified into a new, scarier concept, “terror” babies. This is a good starting point for the discussion because it illustrates quite poignantly the ways in which the rhetoric has driven the debate to the point of absurdity and hyperbole. We then address the proliferation of terror-related grounds of inadmissibility and deportability. The issues which have come up in proceedings center around the malleability of the term “material support,” the exceedingly large breadth of scope in the term “terrorist activity,” as well as the difficulties which follow from allowing for the incorporation of the inadmissibility grounds into the parallel ground of deportability in section 237 of the Immigration and Nationality Act (“INA”). Equally disturbing are the misunderstandings surrounding the term “illegal immigrant.” We argue for a more nuanced approach which takes into account the range of available relief depending on the nature and history of one’s undocumented status. Throughout the discussion, there is the recognition that governmental actors have latitude, sometimes enormously wide latitude, to interpret the laws. It is often in these interstices where abuse occurs. We next discuss the fugitive disentitlement doctrine, and the trend to apply the doctrine outside of its normal confines in the context of criminal defendants and to deprive the courts of jurisdiction to hear the appeals of immigrants. We point out the infirmities with applying the fugitive disentitlement doctrine in the context of immigration. In the Real ID Act, among other legislation, there are severe jurisdiction-stripping provisions which have deprived federal district courts, in habeas proceedings, of the power to review final orders of removal, and modified the jurisdiction of the federal courts of appeals to hear immigrants’ appeals in other important ways. We argue that in these provisions the Real ID Act violates the Suspension Clause. In our conclusion we argue that metaphors certainly help us to interpret the world by making connections between disparate concepts. However, metaphors are not merely “figures of speech” but can result in tools of powerful persuasion. The danger of equating terrorists with immigrants and vice versa through the metaphor of the war on terror has become a very real threat to immigrants’ rights, and by extension, to all our rights, citizens and non-citizens alike.

Calling the Government to Account: Habeas Corpus after Boumediene

In June 2008, the Supreme Court decided Boumediene v. Bush, holding that Guantanamo detainees have a right to habeas corpus under the Constitution's Suspension Clause. In the more than three years since Boumediene, lower federal courts in Washington D.C., have issued nearly eighty decisions addressing the merits of Guantanamo habeas cases. In the process, they have developed an emerging body of national security detention jurisprudence, with implications that transcend the Guantanamo habeas cases. This Article surveys this post-Boumediene jurisprudence and assesses its implications. Although it is too early to draw any definitive conclusions, the growing body of habeas decisions provides a window into Boumediene’s impact and the legacy of the post-9/11 enemy combatant decisions more generally. In particular, the Article describes the significance and limitations of what Boumediene described as a critical function of habeas: calling the government to account by requiring that it provide a lawful basis for a prisoner’s detention.

The Habeas Corpus Suspension Clause and the Right of Natural Liberty

Important recent scholarship shows that the Habeas Corpus Suspension Clause is aimed mainly at substantive legislation that authorizes confinement by the executive that otherwise would be unlawful. Thus a grant of detention authority that leaves the judicial habeas corpus remedy intact can constitute a suspension subject to the clause. This article emphasizes that at the time of the framing the central example of a suspension of the writ was a grant of extremely broad discretion to the executive to confine people the executive believed to be dangerous. It maintains that broad executive discretion to confine is a necessary condition for a grant of detention authority to qualify as a suspension. Therefore legislative authorization of executive detention for reasons of national security is not a suspension as long as the executive’s discretion is substantially bounded; for example, the confinement of enemy aliens during war does not require suspension of the writ. That is true whether the persons to be detained are citizens or aliens. Congressional grants of legally determinate national security detention authority are thus not limited to cases of rebellion and invasion by the Suspension Clause, because they are not suspensions, and may be applied to citizens and aliens alike.

The Four Corners of the Earth: Does the Suspension Clause Protect Aliens Detained Abroad by the United States Military?

Throughout the War on Terror, the United States Military has detained thousands of suspected terrorists as “enemy combatants” in overseas detention facilities. Even after the Supreme Court’s decision in Boumediene v. Bush, which held that aliens detained as enemy combatants at Guantanamo Bay have constitutional habeas corpus rights, it remains unclear whether the Suspension Clause of the United States Constitution protects alien detainees at other overseas facilities. Al Bakri v. Bush, a habeas action filed by an alien detained at Bagram Airfield Internment Facility in Afghanistan, will test whether the Suspension Clause now extends to “the four corners of the earth.” To determine whether constitutional habeas corpus protection is available to aliens like Al Bakri who are being held abroad, this Note will first address the historical reach of the common law and explore how it functions in the Suspension Clause. Part II will demonstrate that the Supreme Court and lower federal courts have generally restricted the extraterritorial effect of the Constitution and have only recognized constitutional rights in favor of aliens with substantial connections to United States territory. Part III will show that territorial considerations likewise controlled whether aliens detained as enemy combatants during World War II possessed constitutional and statutory standing to seek habeas corpus relief. Part IV will trace the Court’s War on Terror habeas corpus jurisprudence and evaluate the functional test resulting from the Boumediene decision. Finally, the Note will apply the Boumediene test to Al Bakri v. Bush and demonstrate that aliens detained abroad are not entitled to constitutional habeas protection.Ultimately, this Note will establish that since territorial considerations determine the ability of an alien to claim constitutional protection, alien enemy combatants, who like Al Bakri are detained beyond United States territory, are not entitled to Suspension Clause protection.

The Privilege of the Writ: The Supreme Court and Post-9/11 Detainee Habeas Corpus Entitlement

Habeas corpus is the right to challenge one’s detention in a court of law. With deep roots in common law, it is promulgated in U.S. law by the Constitution’s single sentence known as the Suspension Clause. Prior to 9/11, habeas corpus jurisprudence erected a framework of entitlements that vary according to a person’s location, citizenship, and alleged crimes. Plotted on a timeline of American history, many of the landmark cases that progressively articulated this framework are clustered around wartime, and the entitlement conventions that obtained reflected the terminology of traditional warfare. After 9/11, as the nature of warfare and enemies evolved, and the Executive claimed unprecedented authority to detain enemy combatants, Guantanamo Bay became the extraterritorial detention facility of choice. Beginning in 2004, the Supreme Court responded with a series of cases that created a minimal but definite foundation of habeas corpus entitlement and due process for Guantanamo detainees. This article looks primarily at these post-9/11 cases, the traditional notions of habeas corpus upon which they are predicated, and the possible shortcomings they evidence relative to Guantanamo and to other extraterritorial detention facilities.

The Habeas Corpus Suspension Clause as a Limit on Executive Discretion

This article seeks to understand the concept of suspension of the privilege of the writ of habeas corpus as that concept is used in the Suspension Clause, which provides that the writ may be suspended only when in cases of rebellion or invasion the public safety may require it. Important recent scholarship shows that the clause is aimed mainly at substantive legislation that authorizes confinement by the executive that otherwise would be unlawful. Thus a grant of detention authority that leaves the judicial habeas corpus remedy intact can constitute a suspension subject to the clause. This article emphasizes that at the time of the framing the central example of a suspension of the writ was a grant of extremely broad discretion to the executive to confine people the executive believed to be dangerous. It maintains that broad executive discretion to confine is a necessary condition for a grant of detention authority to qualify as a suspension. Therefore legislative authorization of executive detention for reasons of national security is not a suspension as long as the executive's discretion is substantially bounded; for example, the confinement of enemy aliens during war does not require suspension of the writ. Grants of legally determinate detention authority are thus not limited to cases of rebellion and invasion by the Suspension Clause, because they are not suspensions.

The Classical Constitution: Roman Republican Origins of the Habeas Suspension Clause

The Framers were substantially influenced by ancient history and classical political theory, as exemplified by their education, the availability of classical readings, and their inculcation in classical republican values. Roman republican models of American constitutionalism, including the theory of mixed government as applied to the Roman constitution, and the distribution of powers among the organs and institutions of the Roman republic, were also well-understood by the Framers. This Article examines the deployment of Executive power in the Roman republic and its limitation by the Roman law doctrine of provocatio and the plebian tribune's power of auxilium, providing substantial protection to a Roman citizen's individual liberties and privileges under the law. Provocatio and auxilium could, however, be suspended under the Roman constitution by a decree in the Roman senate for the executive magistrates to take all measures necessary to safeguard the Republic. The Framers appreciated Roman constitutional history, and applied its lessons in designing many features of Executive authority in the U.S. constitution, particularly in the development and interpretation of the Habeas Suspension Clause. Roman analogues of provocatio and auxilium are relevant to three contemporary debates about the meaning and scope of the Suspension Clause: (1) whether the president may unilaterally suspend the privilege of habeas corpus, without prior congressional authorization; (2) whether Congress's determination of the conditions for suspension are ever subject to judicial review; and (3) whether a suspension can ever be performed retroactively for those already held in detention. Understanding the classical foundations of the American constitution can thus have a significant impact on the principles and methodologies for divining original intent, as well as appreciating the Constitution's structural and rights-protecting aspects.

Non-Self-Executing Treaties and the Suspension Clause after St. Cyr

Non-Self-Executing Treaties and the Suspension Clause after St. Cyr