Habeas and (Non-)Delegation

Paul Diller Willamette University College of Law

Posted in ,

At its core, the Constitution’s Suspension Clause protects against arbitrary executive imprisonment. For this reason, the Supreme Court has consistently interpreted the Clause to require that Congress make available some means of contesting executive detention before a neutral magistrate. Prior to the Court’s decision in Boumediene v Bush,1 which held that Congress’s elimination of federal court habeas jurisdiction for Guantánamo detainees violated the Suspension Clause,2 the Court had articulated a functional view of the Clause. Under this view, the available procedure for challenging executive detention need not be habeas corpus per se, so long as it serves as an “adequate and effective” substitute for the writ.3 In Boumediene, however, the Court retreated from this functional approach and embraced a more rigid Suspension Clause jurisprudence less receptive to substitutes for habeas corpus. Rather than retreat from a functional view of the Suspension Clause, which had a sound historical basis and offered policy advantages, the Court could have decided Boumediene under the nondelegation doctrine. A decision grounded more in nondelegation reasoning than in Suspension Clause absolutism would have preserved flexibility for the creation of habeas corpus replacement procedures in the future while recognizing that the primary responsibility for crafting such procedures lies with Congress, not the Executive.

I. The Suspension Clause as Affirmative Obligation, Restraint, and Source of Power

Located among the negative commands to Congress in Article I, § 9, the Suspension Clause reads, “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.” While the Clause prescribes the conditions under which Congress may suspend the writ, it does not by its own terms make the writ available. Nonetheless, since the passage of the Judiciary Act of 1789, which expressly provided for habeas corpus jurisdiction in the federal courts, it has generally been assumed that the Clause requires Congress to give “life and activity”4 to the writ by making available habeas corpus or an adequate and effective substitute for it in a core set of cases, particularly those involving claims of unlawful executive detention. Under this widely accepted view of the Suspension Clause,5 Congress’s failure or refusal to provide any habeas-like avenue for challenging executive detention would be unconstitutional in the absence of the requisite “Rebellion or Invasion.”

In a handful of cases before Boumediene, the Supreme Court rejected Suspension Clause challenges to congressional efforts to streamline or reroute habeas corpus proceedings. Notably, in United States v Hayman6 and Swain v Pressley,7 the Court held that, so long as Congress provides an adequate and effective substitute for the habeas corpus remedy it has withdrawn, the Suspension Clause is not violated. The functional jurisprudence espoused in Hayman and Swain recognized the benefits of permitting Congress to tinker with the precise contours of the writ to meet practical needs so long as the essential purpose of habeas corpus is fulfilled. In Hayman, for instance, Congress established an alternative procedure for the collateral review of federal convictions in order to relieve some federal district courts of an excessive habeas caseload.8 In addition to offering practical advantages, a functional Suspension Clause jurisprudence appropriately recognizes the historic role of the legislative branch in shaping the precise contours of the writ. The habeas corpus remedy the Framers enshrined in the Constitution, after all, was largely a creation of the British Parliament. When they expressly mentioned habeas corpus in the Constitution’s text, the Framers likely understood that the writ would continue to develop over time through both legislative and judicial tinkering.

The functional view of the Suspension Clause articulated in Hayman and Swain might permit Congress to fulfill its obligation to provide for neutral review of executive detention by delegating this authority to an entity other than an Article III court. The Suspension Clause’s placement in Article I rather than Article III indicates that the provision of a neutral venue for contesting executive detention is primarily a legislative responsibility. Consistent with this approach, the Supreme Court in Swain sanctioned the replacement of habeas review in an Article III court with an alternative procedure before an Article I court that was at least as adequate and effective as traditional habeas.9 A delegation of the habeas review function to an administrative agency might also pass constitutional muster, so long as the agency is sufficiently independent to provide a neutral hearing and the Article III courts play a role in reviewing legal questions on appeal.

II. Boumediene’s Move away from Functionalism

In Boumediene, the Supreme Court confronted two major questions: whether the Suspension Clause’s protections (however defined) extended to foreign nationals at Guantánamo Bay and whether the substitute procedure offered by the Government to Guantánamo detainees—a combination of military panel and Article III review of combatant status—constituted an adequate and effective substitute for the habeas corpus Congress had eliminated in the Military Commissions Act of 2006.10 The Court answered the first question, which is not particularly germane to my Article, in the affirmative after poring over historical evidence regarding the geographic reach of the writ in British and American law.11 In answering the second question in the negative, the Court retreated significantly from its prior functional approach to the Suspension Clause.

The substitute review procedure challenged by the Boumediene petitioners began with a hearing before a military-run Combatant Status Review Tribunal (CSRT). The Department of Defense had established CSRTs in 2004 in response to the Supreme Court’s ruling in Hamdi v Rumsfeld,12 which upheld the President’s authority to detain combatants caught on the battlefield in Afghanistan so long as they had a chance to challenge the factual basis for their detention “before a neutral decisionmaker.”13 The CSRTs provided a level of review far less thorough than habeas, to be sure. Detainees did not receive a lawyer and had a limited opportunity to challenge and present evidence.14 Moreover, military officers—subject to the military command structure—presided over the tribunals, threatening the neutrality of the proceedings.15

In passing the Detainee Treatment Act of 200516 (DTA), Congress added a layer of review on to the CSRTs. The DTA provided detainees with the right to have their CSRT determinations reviewed in the United States Court of Appeals for the District of Columbia Circuit. Of particular importance, the DTA limited the DC Circuit’s jurisdiction to determining whether a detainee’s CSRT hearing “was consistent with the standards and procedures specified by the Secretary of Defense” for CSRTs.17 When Congress passed the Military Commissions Act of 2006, it made clear that a CSRT combined with DTA review in the DC Circuit would be all the review to which Guantánamo detainees were entitled.18 In litigating Boumediene, therefore, the government argued that the DTA-CSRT review scheme constituted an adequate and effective substitute for the habeas corpus jurisdiction the MCA had eliminated.19

In rejecting the government’s argument, the Boumediene majority, in an opinion authored by Justice Anthony Kennedy, refused to view the CSRTs as the first level of collateral review of detention, implying that agency review might never even be considered a component of a constitutionally adequate substitute for habeas corpus.20 In interpreting the Suspension Clause, the Boumediene majority stressed the need for habeas to enable the judiciary to police the executive and legislative branches, an observation in tension with habeas’s historical office as a judicial and legislative tool for checking the Executive.21 The Boumediene majority also refused to interpret the DTA generously so as to allow the DC Circuit to correct flaws in the CSRT process, despite language in the DTA authorizing the appeals court to determine whether CSRT proceedings were “consistent with the Constitution and laws of the United States.”22 While the majority’s niggardly construction of the DTA may have been consistent with congressional intent,23 it also evinced hostility toward any nonhabeas replacement for habeas. In the same vein, the Boumediene majority opined that even if the CSRT-DTA scheme satisfied due process, it might still violate the Suspension Clause,25 Despite seventy-five years of disuse, however, the Court continues to recognize the nondelegation doctrine’s theoretical existence, and for good reason: limits on delegation protect the American people from their elected legislators willingly granting excessive power to the executive. This limit is particularly salient in the context of the Suspension Clause, the core purpose of which is to prevent arbitrary executive detention. If the very executive that the Suspension Clause seeks to restrain has broad authority to craft the procedures for challenging executive detention, there can be little guarantee that those procedures will enable a meaningful challenge to the lawfulness of detention. The majoritarian argument against the nondelegation doctrine, which holds that there is little danger in Congress delegating away its powers to a popularly elected executive,26 is unconvincing in the Suspension Clause context, for the Clause reflects an inherent suspicion of detention by even a popularly elected executive. Moreover, insofar as the Administrative Procedure Act—with its guarantee of judicial review of agency action—has assuaged concerns about delegation in other contexts, no such comfort could be taken in the context of the CSRT-DTA scheme, which fell outside the APA’s ambit.27

From a nondelegation perspective, the CSRT-DTA could not function as an adequate and effective substitute for the habeas corpus withdrawn by the MCA. The executive branch initially established the CSRTs on its own, without any input from Congress, in 2004. Although the DTA provided for review of CSRT determinations in a federal appeals court, Congress said next to nothing about essential procedural aspects of the CSRTs, such as whether counsel would be provided to detainees, who would sit on the panels, and what rights, if any, detainees would have to produce and challenge evidence. Further, the DTA left it to the court of appeals to determine whether the CSRTs complied with the “standards and procedures” established by the executive branch. Nothing in the DTA prevented the executive branch from changing those “standards and procedures” over time to its advantage. Finally, neither the DTA nor the MCA defined the term “enemy combatant,” which is the status that justified detention under Hamdi. Because it gave the executive wide-ranging authority to craft the procedures for challenging detention—as well as nearly carte blanche to establish the substantive standard for determining enemy combatant status—the DTA-CSRT scheme could not serve as an adequate and effective substitute for habeas corpus.


Since Boumediene, Congress has not sought to create a new replacement for habeas corpus for alleged foreign terrorists, despite proposals among policymakers and academics for a “national security court” that would specialize in reviewing detainee status.28 In fact, Congress has appeared happy to relieve itself of responsibility for resolving the status of detainees at Guantánamo, leaving it to the Obama administration and the courts to wade through the legal thicket.29 Whether a Boumediene decision grounded in nondelegation reasoning would have spurred Congress to take a more assertive role in setting detainee policy—as the Court’s Hamdan v Rumsfeld30 decision did with respect to military commissions—is impossible to know. Nonetheless, as written, the Boumediene decision validates continued congressional passiveness in establishing the procedures by which detainee status is determined and the substantive standard that justifies combatant detention.31 For the foreseeable future, the courts will police executive branch detention decisions through habeas corpus proceedings, with scant guidance from the legislative branch that is empowered by the Suspension Clause to play a significant role in checking arbitrary executive detention.


Paul Diller is an associate professor of law at Willamette University.

This Legal Workshop piece is based on Paul Diller, Habeas and (Non-)Delegation, 77 U Chi L Rev 585 (2010).

Copyright © 2010 University of Chicago Law Review.

  1. 553 US 723 (2008).
  2. Id at 771.
  3. Swain v Pressley, 430 US 372, 381 (1977).
  4. Ex parte Bollman, 8 US (4 Cranch) 75, 95 (1807).
  5. A notable dissenter from this view is Justice Antonin Scalia, who asserted that under a “straightforward reading” of its text, the Suspension Clause “does not guarantee any content to (or even the existence of) the writ of habeas corpus.” INS v St. Cyr, 533 US 289, 337 (2001) (Scalia dissenting).
  6. 342 US 205 (1952).
  7. 430 US 372 (1977).
  8. Hayman, 342 US at 213–16.
  9. Swain, 430 US at 381–83.
  10. Military Commissions Act of 2006, Pub L No 109-366, 120 Stat 2600, codified at 10 USC § 948 et seq.
  11. Boumediene, 553 US at 739–71.
  12. 542 US 507 (2004).
  13. Id at 533.
  14. See Boumediene, 553 US at 767.
  15. See Paul Wolfowitz, Memorandum for the Secretary of the Navy: Order Establishing Combatant Status Review Tribunal, online at http://www.defense.gov/news/Jul2004/d20040707review.pdf (visited Sept 14, 2010).
  16. Detainee Treatment Act of 2005 (DTA), Pub L No 109-148, 119 Stat 2739.
  17. DTA § 1005(e)(2)(C), 119 Stat at 2742.
  18. See Boumediene, 553 US at 723–24.
  19. Id at 771–72.
  20. Id at 783.
  21. Id at 743–45.
  22. DTA § 1005(e)(2)(C), 119 Stat at 2742.
  23. See Paul A. Diller, When Congress Passes an Intentionally Unconstitutional Law, 61 SMU L Rev 281 (2008) (arguing that in passing the MCA, Congress intended for it to be struck down as unconstitutional).
  24. Boumediene, 553 US at 785.
  25. A.L.A. Schechter Poultry Corp v United States, 295 US 495, 551 (1935); Panama Refining Co v Ryan, 293 US 388, 433 (1935).
  26. See, for example, Eric Posner and Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U Chi L Rev 1721, 1742–43 (2002) (arguing that institutional rivalry between the legislative and executive branches prevents broad delegation by the legislature to the executive and that even if the legislature did grant broad rulemaking power to the executive branch a slide into tyranny is not likely).
  27. See Bismullah v Gates, 514 F3d 1291, 1294–95 (DC Cir 2008), denying petition for rehearing en banc (Ginsburg concurring) (asserting that a CSRT is “sui generis and outside the contemplation of the APA”); id at 1303 n 3 (Randolph dissenting) (concluding that CSRT determinations are exempted from the APA under the military “functions” exception).
  28. See Stephen I. Vladeck, The Case against National Security Courts, 45 Willamette L Rev 505, 508–16 (2009) (summarizing leading proposals).
  29. If anything, Congress has sought to thwart the Obama administration’s meager attempts to close the Guantánamo Bay prison. See Charlie Savage, Closing Guantánamo Fades as a Priority, NY Times A13 (June 26, 2010).
  30. 548 US 557 (2006).
  31. The Obama administration has ceased referring to Guantánamo detainees as enemy combatants, see Al Maqaleh v Gates, 604 F Supp 2d 205, 209 n 1 (DDC 2009), preferring the term “unprivileged enemy belligerent.”  See Military Commissions Act of 2009, 10 USC § 948a(7) (defining this term).

Post a Comment (all fields are required)

You must be logged in to post a comment.