by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law
Someone please give the new administration and its lawyers a pile of pocket constitutions. With a straight face, apparently, government lawyers argued earlier this week that the Trump executive order on immigration and refugees could not even be reviewed in the courts. But because the executive order violates the constitution so blatantly, yesterday the Ninth Circuit delivered a stinging blow to the administration.
In their unanimous opinion, the Ninth Circuit highlighted how totally unsupported the government position was---there was simply “no precedent” that such an order would be “unreviewable” by the courts. The very notion runs “contrary to the fundamental structure of our democracy.” In other words, the administration lost big.
It was surprising that in its papers, the government cited Boumediene v. Bush, the 2008 decision holding that habeas corpus offers rights to Guantanamo Bay detainees. This was another bumbling move. The Boumediene decision was front and center in the Ninth Circuit's decision.
Boumediene was the ruling that once and for all undid President George W. Bush’s effort to make “unreviewable” the cases of the people detailed at Guantanamo Bay. In Boumediene, the Supreme Court emphasized: "Where a person is detained by executive order, rather than, say, after being tried and convicted in a court,” the need for judicial review “is most pressing."
In Boumediene, an executive order set out a process for assessing whether each individual was an “enemy combatant” or a national security threat. The new immigration order includes no process at all. None: it is a blanket order. These individuals seeking entry into the country had done everything right and had legal status — which was summarily cut off without any individual process. That makes their due process claims particularly strong.
In Boumediene, the Supreme Court discussed the historical availability of habeas corpus as a remedy that allows judges to review all types of persons held in custody. The justices rejected the argument that for noncitizens, “the Constitution necessarily stops” at the border. To be sure, Boumediene also emphasized that detaining a person for a short period of time for initial screening would receive deference. But here there is no individualized screening procedure in place. The justices have emphasized that there might be "practical considerations" where judicial review cannot occur, like if someone is detained in a war zone. But these people are being detained in our airports or barred from flying to them. These same people could have entered the country legally the day before the order was signed. No emergency occurred in the interim.
Apparently the administration needed a reminder that the Supreme Court has repeatedly struck down efforts to hold people in custody without fair process, in the face of claims of national security. Consulting a pocket Constitution, once can quickly observe that in Article I, the Suspension Clause states that the Privilege of the Writ of Habeas Corpus shall not be suspended by Congress, except in cases of rebellion or invasion. No one claims Congress has passed a law suspending habeas rights.
Other American presidents have learned the hard way that judges will not shy away from doing their constitutional duty to stop arbitrary detentions. Given the administration’s talk about reopening black sites or refilling Gitmo to ISIS detainees, it is important the confused Keystone Cops in this administration get that message early and often.
Alexander Hamilton wrote that “the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.” Hamilton, in The Federalist Papers, went on to quote Sir William Blackstone, who called habeas corpus the “stable bulwark” of liberty. With an administration bent on arbitrary imprisonments, the bulwark against tyranny will again be tested. In our democracy, the judiciary and the Constitution will prevail.