Did the Madisonian Compromise Survive Detention at Guantanamo?

Lumen N. Mulligan - University of Kansas Law School

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This Essay takes up the Court’s less-heralded second holding in Boumediene v. Bush1—that a federal habeas court must have the institutional capacity to find facts, which in Boumediene meant that a federal district court must be available to the petitioners. Although this aspect of the opinion has gone largely unnoticed, it is inconsistent with the Madisonian Compromise—the standard view that the Constitution does not require Congress to vest jurisdiction in any federal court except the Supreme Court. In fact, it appears that the Court adopted, sub silentio, the position famously advanced in dicta by Justice Story in Martin v. Hunter’s Lessee2 that the Constitution requires Congress to vest the lower federal courts with jurisdiction to hear executive-detention habeas corpus cases. In considering alternatives to this bold break with long-settled constitutional doctrine, this Essay examines newly uncovered opinions from Supreme Court Justices to determine whether Justices acting alone “in chambers” remain a viable habeas forum of last resort post-Boumediene, why the Boumediene Court failed to address this issue directly, and, finally, the degree to which the need for an independent finder of fact is well grounded in constitutional doctrine. This Essay concludes that Boumediene’s rejection of the Madisonian Compromise, rather than its decision with respect to the scope of the habeas writ, will come to be its longest-lived legacy for federal courts law.

Bomediene v. Bush and the Madisonian Compromise

I begin with my core proposition: Boumediene represents the first challenge issued by the Court to the soundness of the Madisonian Compromise.  Justice Kennedy authored the Court’s opinion, which first held that section 7(a) of the Military Commissions Act of 2006 (MCA)3 was an unequivocal attempt to strip every federal court, Justice, and judge of jurisdiction to hear habeas petitions brought by alien detainees held at Guantánamo and that these detainees were protected by the Suspension Clause. The Court then considered whether a military commission’s determination that a person was an enemy combatant, followed by a review of that determination by the Combatant Status Review Tribunal (CSRT) coupled with limited judicial oversight in the D.C. Circuit, as proposed by the Detainee Treatment Act of 2005 (DTA)4 and later the MCA, constituted a constitutionally adequate substitute for habeas relief. (I will refer to this three-step set of procedures as the “DTA regime.”)  The Court held the DTA regime unconstitutional because it lacked an independent court possessing the power to find facts.  The Court explained that for habeas corpus to function as a constitutionally effective remedy in this context, the habeas court must have the authority to assess the sufficiency of the government’s evidence and to admit exculpatory evidence. The Court went further still and found constitutional fault in the D.C. Circuit’s inability to transfer these habeas claims to a district court, an institution better suited to factfinding than an appellate court. In so holding, the Court seems to adopt a version of Justice Story’s view of mandatory lower court jurisdiction (i.e., the Court requires the existence of a district court to hear habeas claims). Prior to Boumediene, no sustained holding from a federal court had ever espoused such a rule.

The rejection of the Madisonian Compromise by the Supreme Court represents an epic change of course. Given this consequence, a less Article III–centric reading of Boumediene’s factfinding-capacity requirement may, to many readers, appear the better interpretation of the case.  One might well propose that this factfinding role in habeas cases could be fulfilled by state courts or Article I courts instead of Article III courts, thus preserving the Madisonian Compromise. This broader reading faces two hurdles, however.

First, Tarble’s Case5 bars the state courts from serving as a constitutionally sufficient habeas forum against federal officers. While this broad constitutional bar against state court issuance of habeas relief against a federal officer has been the subject of much academic criticism, the federal courts continue to embrace the rule. Thus, under blackletter doctrine the state courts cannot fulfill Boumediene’s factfinding function in the federal executive-detention context.

Second, it is highly doubtful that an Article I tribunal could serve as a habeas forum, thus meeting Boumediene’s factfinding requirement, and remain consistent with the holding in Commodity Futures Trading Commission v. Schor.6 As to the first Schor interest (i.e., that Article I judges must be free from domination from the political branches), the circumstances surrounding the DTA regime have shown there is great potential for domination by the executive. To cite just one example, the Department of Defense has dismissed at least one CSRT judge for expressing frustration with the DTA regime’s lack of procedural proctections. Moreover, as the Schor Court held, when Congress requires a private right, such as habeas corpus, to be litigated exclusively in an Article I court, a “searching” judicial examination of the congressional attempt to control the manner in which those rights are adjudicated is required. An Article I–habeas forum would also fare poorly under the second Schor interest (i.e., that Article I courts must not adversely affect the role of the independent judiciary). First, the federal habeas power has, from the founding until 2005, been vested in federal courts and judges—not Article I courts. Second, the right at issue, habeas corpus, is of constitutional dimension. Third, Congress’s motivations in passing the DTA regime, as the floor commentary make clear, were aimed at dimunition of judicial power.

In-Chambers Opinions and the Madisonian Compromise

Having concluded an Article III actor is necessary to perform Boumediene’s factfinding function, I now turn to the question of whether the Boumediene Court’s factfinding holding necessitated its further conclusion that a federal district court be available to executive-detention habeas petitioners and, thus, its apparent adoption of Justice Story’s mandatory-lower-federal-court-jurisdiction position. Professor Edward Hartnett, three years prior to Boumediene, provided a thorough analysis of whether federal habeas relief requires the existence of lower federal courts.7 He concluded that the ability of individual Justices to issue habeas relief “in chambers” offered a forum for original jurisdiction in federal habeas suits other than a lower federal court. Thus, under Hartnett’s view, one may maintain the soundness of the Madisonian Compromise and provide an original-jurisdiction forum for federal executive-detention habeas claims.

Boumediene’s factfinding holding, however, presents a difficulty for this in-chambers view. Namely, can Justices in chambers perform the sort of record supplementation that is constitutionally required under Boumediene or must Congress vest a lower federal court (with its intrinsic factfinding expertise) with jurisdiction to hear such claims? Taking up this question, I conclude that there is some authority for Justices in chambers to resolve factual questions, but the resulting scenario would be so bizarre as to warrant the consideration of alternative approaches.

Here I rely upon two newly published in-chambers rulings where the presiding Justice explicitly notes that he took evidence to create a new record to resolve contested issues and made findings of fact in original-jurisdiction habeas petitions seeking relief from executive detention.8 The first case is Ex parte Stevens.9 Here, Private Edward Stevens had enlisted for a three-month term in the First Minnesota Regiment, which had been called to service in the Civil War.10 He contended that his commitment expired, that he had not reenlisted, and that his colonel, Willis Gorman, held him to service beyond that date.11 Because Stevens’s service called upon him to be in nearly constant movement local judicial authorities were unable to take habeas jurisdiction over his petition. Thus, Stevens’s attorney filed his habeas petition, in the first instance, before Justice James Moore Wayne in chambers. In his answer, Gorman presented Justice Wayne with three affidavits attesting to the fact that Stevens signed reenlistment papers and that Stevens was paid a reenlistment bounty.12 Stevens countered with an attempt to impeach the authenticity of the reenlistment papers.13 Stevens’s whole case,14 then, rode on the factual question: Did he reenlist? Justice Wayne resolved the contested evidence in favor of the colonel and dismissed the habeas petition.15

The next example of a Justice’s in-chambers creation of a record in order to resolve a dispositive factual issue in an executive detention habeas case occurred in the aftermath of World War II. In Ex parte Durant,16 the Army charged Captain Kathleen Durant with stealing one million dollars worth of jewels from Kronberg Castle in Germany while she serving as a custodian of spoils of war.17 The Army began a court-martial proceeding in Germany during the summer of 1946. By August 29, the Army had rested its case-in-chief, but the presiding officer stayed the proceeding to allow the defense to gather evidence from sources in the United States.18 During this adjournment, Durant sought habeas relief directly with Justice Harold H. Burton, believing that no district court had jurisdiction to hear such a claim regarding citizens held in Germany.  Durant claimed that she was a civilian at the time of the court-martial, rendering the military proceeding without jurisdiction. In making his determination, Justice Burton took many pieces of evidence under consideration, including: affidavits signed by Durant regarding her civilian status, Durant’s continued submission of pay requests to the Army, and Durant’s orders from March and May of 1946.19 After weighing this evidence, he concluded that Durant remained under military jurisdiction.20

Ex parte Stevens and Ex parte Durant, then, provide precedential authority for a Justice acting in chambers to take supplemental evidence and resolve contested issues of fact in cases seeking habeas relief from executive detention. Furthermore, these supplemental factfindings are precisely the type that the Boumediene Court held constitutionally required in executive-detention habeas cases. As such, Stevens and Durant offer support for the view that Boumediene’s factfinding requirement could be incorporated into our constitutional scheme without rejecting the Madisonian Compromise—contrary to Boumediene’s implication that Article III factfinding requires a district court.

This finding of compatibility may be too hasty, however, given that the mere authority to engage in supplemental factfinding does not necessarily equate to an institutional capacity to find facts—the Boumediene opinion requires the latter not merely the former.  At first blush, moreover, Justices in chambers appear to be deficient in such factfinding institutional capacity.  They lack the staff and facilities present in a district court to construct a detailed factual record.  Further, factfinding is time consuming and thus would detract from the Court’s ability to resolve other cases on its appellate docket.  Finally, there are only nine Justices, leaving them without the peoplepower to fully take on such a burgeoning habeas docket.

Nevertheless, the setting of Justices in chambers might still hold some promise as a forum that can fulfill the Boumediene factfinding function—at least as a venue of last resort—through the use of special masters.  Much as they do for the Court en banc in original jurisdiction cases, special masters could hold evidentiary hearings on the Justices’ behalf, thus expanding their reach without suffering the adverse effects that extensive factfinding obligations would inflict upon the Justices other duties. Moreover, just as the Court en banc does, individual Justices in chambers could rely upon assertions of inherent authority to employ special masters in this context. Presumably, special masters would be individuals familiar with habeas cases and with an acumen for factfinding, thus addressing the Court’s institutional capacity problem. Further, the use of special masters en masse could overcome judicial economy concerns.

Explaining the Absence

Let’s assume, at least for the moment, that the in-chambers model presents a viable forum of last resort for federal executive-detention habeas cases. This assumption raises the question, then, of why the Court did not deploy the in-chambers view as a means of circumventing the jurisdiction-stripping difficulty in Boumediene.  Under standard severability doctrine, the Justices-in-chambers model should have been an option for the Court to consider in the case. Its failure to take this option weighs heavily against the viability of the Justices-in-chambers model, with special masters and all, as too fanciful.

When a provision of an act is held unconstitutional, the Court, as a matter of legislative intent, must determine whether the offending provision is severable from the body of the act or if the entire act must be struck down. Although the Boumediene Court did not specifically address the severability issue, after holding that the DTA regime violated the Suspension Clause, it faced just such a severability question. Section 7(a) of the MCA states:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.21

If the Justices-in-chambers view represents the constitutional minimum in terms of federal fora for executive-detention habeas suits, the only offending language in section 7(a) would be the third word: “justice.” Assuming this to be the case, the Court very well could have struck that one word—“justice”—from section 7(a), preserving a habeas venue of last resort with the Justices themseves, akin to what is found in Felker v. Turpin22
and Ex parte McCardle.23 The remainder of MCA section 7(a) would then be fully operative as a law.

From the Court’s decision not to take this option, I contend that the best inference is that the Court did not consider the Justices-in-chambers model viable. While the proposed partnering of Justices in chambers with special masters could well preserve the sanctity of the Madisonian Compromise even in the face of Boumediene-required factfinding capacity, the picture we are left with is bizarre: each Justice, acting alone in chambers, overseeing a host of separate habeas litigations via assignment to numerous special masters. Further, none of these cases would be reviewable by the Court en banc, or anywhere else. It is a foreign scene to be sure, which is at odds with contemporary norms concerning the appropriate use of judicial power. For many, then, the in-chambers model is not a viable option. Perhaps this is the Court’s view as well.

Factfinding as a Component of Judicial Independence

The consequences of Boumediene’s necessary-factfinder rule leave one with an uncomfortable dilemma. Either, contrary to the Madisonian Compromise view, the Constitution compels lower-federal-court habeas jurisdiction, as Boumediene implies, or it authorizes the Justices in chambers, aided by special masters, to take individual jurisdiction over scores of executive-detention habeas claims, producing a bizarre procedural landscape. As neither option is attractive, one might attempt to avoid the dilemma altogether by arguing that Boumediene’s factfinding requirement is sui generis to the circumstances of Guantánamo Bay and thus limited to the facts of that case. But such a limitation of Boumediene’s factfinding holding is not easily done. In fact, the Court jealously guards the ability of Article III courts to find facts in constitutional cases across a wide swath of suits, holding that this factfinding power is a structural feature essential to judicial independence. Thus, when it comes to the adjudication of constitutional issues, the Court has held for decades that Article III courts are not bound by facts found by state courts, Article I courts, the executive more generally, or Congress.  Reviewing cases in these many contexts illustrates that Boumediene’s factfinding requirement, rather than being a unique feature of the Guantánamo cases, is a deeply entrenched in constitutional doctrine premised upon concepts of judicial independence.


Boumediene holds that a habeas court in a federal executive-detention case must have the capacity to make supplemental findings of fact in order to satisfy constitutional standards. In facing this constitutional factfinding imperative, then, four fora are potentially available. First, state courts could fill this role, but the holding in Tarble’s Case bars this route. Second, Article I courts could hear these cases but it is highly doubtful that vesting an Article I court with exclusive jurisdiction to hear detainee habeas claims would be consistent with contemporary norms surrounding Article I jurisdiction.  Third, lower federal courts can fulfill this role, but this comes at the cost of rejecting the Madisonian Compromise. Fourth, Justices in chambers could serve in this factfinding role, but this approach paints a scene best described as bizarre to the modern observer. In looking at these unattractive options, the Court appears to have opted for the third, presenting its first ever direct challenge to the Madisonian Compromise.  This rejection of the Madisonian Compromise may be the most aggressive flexing of the judicial muscle we have seen in decades. I suspect that long after the last detainees leave Guantánamo Bay, the effects of the Court’s adopting Justice Story’s position on mandatory lower court jurisdiction will continue to shape the scope of federal judicial power—especially in the context of access to the courts for the protection of constitutional interests—for decades to come.


Copyright © 2010 NYU Law Review.

Lumen N. Mulligan is a Professor at University of Kansas Law School.

  1. 128 S. Ct. 2229 (2008).
  2. 14 U.S. (1 Wheat.) 304, 331 (1816).
  3. Pub. L. No. 109-366, § 7(a), 120 Stat. 2600, 2635–36 (2006) (codified at 28 U.S.C. § 2241(e) note (2006)).
  4. Pub. L. No. 109-148, § 1005, 119 Stat. 2739, 2740–44 (2005) (codified as amended at 10 U.S.C. § 801 note (2006)).
  5. 80 U.S. (13 Wall.) 397 (1871).
  6. 478 U.S. 833, 848 (1986).
  7. See Edward A. Hartnett, The Constitutional Puzzle of Habeas Corpus, 46 B.C. L. Rev. 251 (2005).
  8. For the majority of the Court’s history, such in-chambers rulings were published haphazardly, if at all. Beginning in 2004, however, Cynthia Rapp, Deputy Clerk of the Supreme Court of the United States, began gathering, cataloging, and publishing these in-chambers dispositions. Many of these opinions address requests for habeas relief and speak to the question of finding facts, at least by implication. The in-chambers opinions collected by Ms. Rapp are published by the Green Bag under the title A Collection of In Chambers Opinions by the Justices of the Supreme Court of the United States. There are currently three volumes of this reporter with a fourth in supplement form. The Green Bag suggests the citation form of: (Case name), (Vol.) Rapp (Page) ((Year)). As such, the cases discussed below, Ex parte Stevens and Ex parte Durant, where the Rapp edition is the first publication of the opinions, may be located at 4 Rapp 1508 (1861) (Wayne, J., in chambers) and 4 Rapp 1416 (1946) (Burton, J., in chambers) respectively.
  9. 4 RAPP 1508 (1861) (Wayne, J., in chambers).
  10. Id. at 1508–09.
  11. Id. at 1509–10.
  12. Id. at 1512.
  13. Id. at 1516.
  14. Stevens also brought an argument in the alternative that the reenlistment procedure was unlawful. Justice Wayne quickly disposed of this argument, and it is not relevant to this discussion. Id. at 1516–18.
  15. Id. at 1516, 1518.
  16. 4 RAPP 1416 (1946) (Burton, J., in chambers).
  17. Id.
  18. Id. at 1417.
  19. Id. at 1417–21.
  20. Id. at 1420–21.
  21. Pub. L. No. 109-366, § 7(a), 120 Stat. 2600, 2635–36 (2006) (codified at 28 U.S.C. § 2241(e) note (2006)).
  22. 518 U.S. 651, 661 (1996).
  23. 74 U.S. (7 Wall.) 506, 515 (1868).

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