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

Editor’s note: This article is the third in a series on the Supreme Court’s Term.

At a time when the rule of law is under threat and xenophobic incitement has become a central government policy, a five-Justice majority of the Supreme Court has called into question the Constitution’s fundamental guarantee against executive detention. Refugees are the primary target of the Court’s decision in Department of Homeland Security v. Thuraissigiam, but the immediate implications of Justice Samuel Alito’s opinion are much wider, and the opinion endangers everyone – U.S. citizens included – by reopening settled questions about the Habeas Corpus Suspension Clause of the Constitution.

This important case has gotten less public attention than it deserves.   The opinions may be hard for non-experts to follow, because they arise in a technically complex area of immigration law, and because Alito mischaracterizes some of the issues. The case arose when Vijayakumar Thuraissigiam fled Sri Lanka in the hope of being protected by the United States and was arrested by immigration officials in 2017 at a short distance from the southern border. He was placed in rudimentary “expedited removal” proceedings, where his claims for protection were quickly rejected. The statutory provisions on expedited removal clearly preclude anyone in his position from obtaining judicial review, including by habeas corpus, of the legality of the removal decision. The central issue raised by the case was whether this total preclusion of habeas corpus for a refugee within the United States violated the Suspension Clause.

Once the Supreme Court granted certiorari, it was likely that five Justices would rule against the refugee’s right to have his particular claims reviewed; the more urgent question was how broadly they would uphold preclusion of judicial review. As it turned out, concerns about a broad ruling were justified. Justice Alito not only rewrote and marginalized prior precedent on habeas corpus, but reached out to decide an important procedural due process issue that his own analysis had rendered irrelevant.

What is Expedited Removal?

Expedited removal under 8 USC § 1225(b)(1) is a set of procedures designed to send certain categories of noncitizens out of the United States with only the most rudimentary opportunity to be heard, and with no opportunity for judicial review. It was created in 1996, and has been rolled out in stages, giving the courts a chance to get used to its imposition in one context before the term is transformed by expanding it to another.   In theory, it applies only to noncitizens who are inadmissible under two subprovisions of the Immigration and Nationality Act:  for misrepresentation (8 USC § 1182(a)(6)(C)),  or for lack of relevant documents (8 USC § 1182(a)(7)). In practice, the weakness of the procedure and the lack of accountability mean that it can be applied more broadly. In some cases, U.S. citizens have been wrongfully removed under this practice.

Section 1225(b)(1) requires the application of expedited removal to arriving noncitizens at ports of entry, and authorizes its extension to other locations. When expedited removal was first implemented in 1997, it was used only at ports of entry, and a challenge to the procedure was rejected by the D.C. Circuit on the ground that arriving noncitizens who were not already permanent residents had no right to fair procedures at all with regard to their admission. The foundation of expedited removal is a Supreme Court decision of 1950, United States ex rel. Knauff v. Shaughnessy, denying the procedural due process rights of a first-time entrant; Knauff has never been overruled.

Subsequent expansions of expedited removal include its application to a zone within 100 miles of the southern border (2004), within 100 miles of any land or sea border (2006), and the extension of expedited removal nationwide by the Trump administration in 2019. The first two of these covered noncitizens deemed by the immigration officials to have been continuously present in the United States for less than 14 days, while the latest version lengthens that period to two years, which is the maximum authorized by the statute.  Applying expedited removal to the interior cannot be justified by the Knauff doctrine, but proponents of expedited removal have argued that Knauff too should be extended, to deny procedural due process rights to broadened classes of noncitizens.

Although the statute places decisions in the hands of a single immigration officer, certain kinds of claims trigger diversion from the officer to a less skeletal hearing. Assertions under oath that the individual already possesses U.S. citizenship, lawful permanent resident status, or previously-conferred refugee/asylum status require additional review. Expressions of fear upon return are supposed to lead to referral for “credible fear” screening by an asylum officer, who is to determine whether there is a “significant possibility” of eligibility for protection from persecution or torture (such as discretionary asylum, mandatory withholding of removal, or mandatory relief based on the Convention Against Torture (CAT)). If so, the individual receives a normal removal hearing before an immigration judge with the opportunity to be represented by counsel; if not, there is one more quick review of the credible fear determination by an immigration judge.

The statute as written severely restricts judicial review of an expedited removal order. Under Section 1252(e)(2), only habeas corpus is permitted, and only to resolve three particular issues: whether the petitioner is a noncitizen, whether the petitioner was in fact the subject of the expedited removal order, and whether the petitioner is entitled to diversion into a fuller hearing as a lawful permanent resident or previously admitted refugee or asylee.

In other words, for the overwhelming majority of people who are subjected to expedited removal, there is no availability of habeas at all. The statute does not allow habeas inquiry into whether there is any lawful basis for detaining and removing the individual, whether it violates other statutory restrictions, whether the procedural requirements that do exist have been followed, or whether any aspect of the proceeding is unconstitutional.  Section 1252(e) as written is radically inconsistent with the traditional role of habeas corpus, which is to determine whether detention rests on lawful legal authority.

The Opinion of the Court

Alito’s Opinion of the Court proceeds in four parts. Part I is the usual exposition of the background of the case, which includes a description of expedited removal and praise of its usefulness. Part II introduces the Suspension Clause and makes the surprising argument that Thuraissigiam was not really seeking habeas corpus within the meaning of the Suspension Clause because he did not want “simple release” from detention. Part III considers and rejects three kinds of counterarguments, (A) precedents from the pre-constitutional period and the early Republic, before there was any federal immigration law; (B) the rich body of precedent applying habeas corpus in immigration law despite congressional efforts to make exclusion and deportation decisions final and unreviewable; and (C) the Court’s leading 2008 decision on the Suspension Clause, Boumediene v. Bush, which was not about immigration. Part IV takes the opportunity to overturn a nonexistent holding of the Ninth Circuit, in order to deny that Thuraissigiam had procedural due process rights in his expedited removal.

Beginning with Boumediene

The starting point for the analysis should have been Boumediene v. Bush, the modern Supreme Court’s leading exposition of the Suspension Clause. In Boumediene the Supreme Court invalidated an act of Congress and emphasized the important role of habeas corpus in the separation of powers and the protection of individual liberty.  It confirmed its prior interpretation of the Clause in INS v St. Cyr – a deportation case – as guaranteeing habeas corpus or an equivalent means of judicial inquiry into the legality of executive detention and as extending both to citizens and to noncitizens.   The Court in Boumediene noted that precedents as of 1789 were relevant, because “‘at the absolute minimum’ the Clause protects the writ as it existed when the Constitution was drafted and ratified.” The Court considered it

[U]ncontroversial … that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law. And the habeas court must have the power to order the conditional release of an individual unlawfully detained – though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.

But Alito had dissented in Boumediene, and his opinion in Thuraissigiam expresses disrespect for that precedent. He purports to apply Boumediene arguendo, while leaving open whether the Court may revisit the question “whether the Clause independently guarantees the availability of the writ or simply restricts the temporary withholding of its operation,” whether the Clause might require less than what the writ provided in 1789, and whether the protection of the Clause could be denied to noncitizens who are deemed to lack “allegiance.” The following week Justice Kavanaugh, writing for the same majority in Agency for International Development v. Alliance for Open Society International, showed similar disregard for the precedential value of Boumediene on the issue of noncitizens’ extraterritorial constitutional rights. Kavanaugh, of course, had participated with other D.C. Circuit conservatives in undermining Boumediene in later detainee cases.

If Boumediene had been properly applied in Thuraissigiam, the Court would have recognized that Thuraissigiam claimed to be detained pursuant to an illegal order of removal, in contemplation of a return to Sri Lanka forbidden by statute, and that he claimed that the removal order rested on misinterpretation of the governing legal standard and failure to observe required procedures. The removal order was the official basis for his continuing detention by the executive within U.S. territory, and he was not being held for further administrative procedures. Accordingly, the Suspension Clause required judicial inquiry into the lawfulness of the removal order, and yet section 1252(e) prohibited any judicial inquiry of that kind.  Thuraissigiam was thus entitled either to release or to a new and lawful hearing if the government preferred a second chance, and by statute and regulation that new hearing would have involved both his entitlement to mandatory forms of protection (withholding of removal and CAT relief) and a parallel request for a discretionary grant of asylum.  Over a century of immigration law cases supported his right to habeas inquiry, and so did the principles of habeas corpus law developed prior to 1789 and confirmed by the Court in St Cyr and Boumediene.

These arguments were made by Thuraissigiam, and later defended by Justice Sotomayor in her eloquent dissent. Alito, however, evades these arguments by misconstruing the content of the habeas petition, and then by twisting a supposed concession of counsel about the relevance of 1789 into acceptance of a constricted and manipulative form of originalism.

The Wrong Turn at the Outset

Instead of Boumediene, Alito makes his starting point the utterly aberrational case of Munaf v. Geren, issued the same day as Boumediene.  In Munaf, two U.S. citizens who had traveled to Iraq and allegedly committed crimes there were detained by U.S. military authorities, who then planned to transfer them to the custody of the local government for trial. Their relatives sought to enjoin the transfer by means of a habeas corpus action in the District of Columbia. The Supreme Court held that habeas jurisdiction was proper, but that their effort to block transfer was doomed to fail on the merits, because respect for Iraq’s sovereignty over its territory – in which the citizens were present – justified the Executive in handing them over for trial. Along the way, the Court reasoned that habeas corpus was inappropriate as a remedy because “the last thing petitioners want is simple release; that would expose them to apprehension by Iraqi authorities,” whereas habeas is “at its core a remedy for unlawful executive detention.” And “the ‘release’ petitioners seek is nothing less than an order commanding our forces to smuggle them out of Iraq.”

Plainly the Munaf case has nothing to do with Thuraissigiam. And Alito’s claim that it is analogous is doubly dishonest. First, he deliberately distorts what Thuraissigiam was seeking.  Second, it is clear that he had no intention of limiting his holding to situations where the noncitizen did not seek simple release.

In fact, Thuraissigiam’s habeas petition was entirely appropriate.  It had asked the district court to declare his expedited removal order contrary to law; to order DHS to vacate the expedited removal order; to “[i]ssue a writ of habeas corpus, an injunction, or a writ of mandamus directing Respondents to provide Petitioner another opportunity to apply for asylum and other applicable forms of relief;” and to grant such further relief as the court deemed just and proper.  That series of requests was consistent with the traditions of habeas corpus, including the authority of the habeas court to “dispose of the matter as law and justice require.”  28 USC § 2243.  This statutory phrase derives from the 1867 Habeas Corpus Act, paraphrasing the older English formula “as to justice shall appertain;” the latter appeared in the 1640 Habeas Corpus Act, as Blackstone observed in his Commentaries, and was also repeated in the 1679 Habeas Corpus Act.

The expectation that the court would give DHS a second chance to decide the petitioner’s case lawfully, rather than ordering his immediate release, follows longstanding practice in immigration law and other fields. This is consistent with what the Court said about conditional release in Boumediene, and with St. Cyr, which involved more than just “simple release.” (St. Cyr was a lawful permanent resident who became deportable after conviction for crime, and who sought continuation of his permanent resident status by means of relief under 8 USC § 1182(c); on habeas corpus, the Court found the removal order against him unlawful because the agency had wrongly denied his eligibility for a decision on this relief.) And it is the statutory and regulatory structure for both expedited and ordinary removal that requires the mandatory forms of relief such as withholding and CAT to be heard along with the asylum claim. In short, Thuraissigiam’s petition sought his release from detention and was well within established practice and understanding of habeas petitions in the immigration context. One need only read the transcript of the oral argument to see what a gross mischaracterization Alito indulged in.

Does that mean that the majority opinion turned on a drafting error in the habeas petition, and that a more explicit petition demanding simple release would have succeeded? Someday a Supreme Court with greater respect for the Constitution could limit the Thuraissigiam case in that manner, but it is clear that Alito did not intend that result and was instead trying to bolster the Trump administration’s use of expedited removal more broadly. Neither was Alito saying that the habeas petition was premature, and that the Suspension Clause would protect Thuraissigiam’s right to the writ once he was taken by deportation agents to an airport to be forced onto a flight to Sri Lanka.  The opinion begins with a paean to expedited removal, and quotes Trump administration polemics alleging abuse of the asylum process as “factual material.” After discarding Thuraissigiam’s detention from the scope of the Suspension Clause, Alito still goes on to attack the historical bases of INS v. St. Cyr, and he reaches out to decide a procedural due process issue that is foundational to expedited removal. Alito was not aiming at a narrow technical resolution of the case.

Manipulative Originalism

Alito’s opinion pursues a manipulative version of originalism that eviscerates the Suspension Clause by ignoring the meaning of the writ of habeas corpus, and by treating the relatively few early examples of published habeas corpus decisions as isolated data that he can distinguish, rather than as sources of the underlying principles, which Boumediene had already stated. Alito twists a supposed concession of counsel that the case could be decided on the basis of the writ as it existed in 1789 into an excuse for this constricted focus. Counsel obviously meant that the historical content of the writ, as identified in Boumediene, would suffice without reliance on later expansions; the best-known example of which has been the allowance of federal constitutional challenges to state criminal convictions.

Neither immigration law in the modern sense nor refugee law in the post-War sense existed in England or the United States before 1789. If we must look for precedents on all fours, then we will not find them – neither precedents saying that habeas corpus applies in immigration law nor that it does not.  There are analogies, before 1789 or shortly thereafter, but Alito finds ways to reject them all.

In part he rejects them by means of his dishonest claim that Thuraissigiam was not seeking release, whereas the petitioners in the older cases were granted release. With that in mind, he dismisses the celebrated case of Somerset v. Stewart and its progeny. In Somerset, Lord Mansfield recognized the freedom of slaves brought to England and enabled the petitioner to remain there rather than be forced back to Jamaica where slavery was operative. Alito discards this precedent, saying that these were merely “collateral” consequences of a decision that provided release. Exactly the same should have been true of Thuraissigiam’s claim against being forced back to Sri Lanka.

Alito also rejects the precedents on extradition, in part because they date from after 1789, and in part on the paper-thin rationale that the petitioners were seeking release from detention for purposes of extradition rather than seeking to prevent extradition. He adds that the ability of foreign suspects to remain in the United States upon release was due to the content of U.S. immigration regulation at the time.  Exactly as Thuraissigiam’s would be. And similarly for the early cases on foreign sailors who deserted their vessels.

One of these desertion cases, Ex parte d’Olivera, particularly attracts Alito because Justice Story, on circuit, held the detention of a deserting sailor to be unauthorized by statute, and then “released” him into the custody of the foreign ship. But Story’s order was clearly an exercise of the remedial discretion to dispose of the case as justice required, in light of Story’s stated views on international comity and the similar congressional policy regarding deserters from domestic ships. Against the very different legal framework today, it provides no support for Alito’s eagerness to deny habeas corpus to refugees and send them back to their persecutors.

Once immigration regulation did begin, the courts immediately recognized the necessity for habeas corpus, in terms that contradict Alito’s artificial truncation of the scope of the writ.  He should have been willing to learn more from passages like the following, in an opinion by Justice Holmes:

If we regard the petitioner . . . as if he had been stopped and kept at the limit of our jurisdiction, still it would be difficult to say that he was not imprisoned, theoretically as well as practically, when to turn him back meant that he must get into a vessel against his wish and be carried to China. . . . It is true that the petitioner gains no additional right of entrance by being allowed to pass the frontier in custody for the determination of his case. But, on the question whether he is wrongly imprisoned, we must look at the actual facts. De facto he is locked up until carried out of the country against his will.

The petitioner then is imprisoned for deportation without the process of law to which he is given a right. Habeas corpus is the usual remedy for unlawful imprisonment.

Holmes was a hard-headed jurist who was capable of turning cruel phrases. But his understanding of actual facts is far from Alito’s facetious assertion that “the Government is happy to release [Thuraissigiam] – provided the release occurs in the cabin of a plane bound for Sri Lanka.”

Dismissal of Immigration History

Alito, however, discards the entire history of habeas corpus in federal immigration law as lacking constitutional significance, regardless of what the earlier Justices said. He rejects INS v. St. Cyr and its account of the case law in the period before the Administrative Procedure Act superseded statutory assertions of finality. He claims that none of the habeas practice was based on constitutional principles, but all was mere statutory interpretation.

It is true that not every single case of this pre-APA “finality period” necessarily represents a considered judgment on the location of the constitutional minimum. Once the various statutes were interpreted to preserve the constitutional function of habeas corpus, particular cases may have applied settled precedents without examining their premises. But as Sotomayor’s dissent explains, the constitutional language in various key decisions that he downgrades ought to be respected.

Perhaps the most remarkable aspect of Alito’s discussion of the immigration history is that he never gives any reason why the historical principles of habeas corpus would not apply in immigration law. This vacuum at the center of the argument leaves his opinion as an exercise in willful contradiction.

Moreover, he never gives any indication of what the Suspension Clause does require with regard to immigration detention. Sotomayor’s dissent suggests that this might be because he doubts that the Constitution guarantees any content to the writ. If that is the reason, then we are all in danger.

It is unclear what effect this section of the opinion will have in the future. For example, it could be taken as indicating that judicial review of deportation decisions is never constitutionally required; or it could mean that the question remains open for some category of noncitizens, such as lawful permanent residents, or for others who claim entitlement to simple release.

A Gratuitous Extra Holding on Procedural Due Process

Alito’s disqualification of Thuraissigiam’s habeas petition should have ended the case. But having rejected the claim that Section 1252(e) violated the Suspension Clause, Alito went on to decide a procedural due process claim that Thuraissigiam had never made: that judicial review of expedited removal was required by the Due Process Clause of the Fifth Amendment. Refuting that supposed argument, Alito seized the chance to address the procedural due process issue at the heart of the expedited removal process: whether noncitizens who were discovered at large inside U.S. territory, after a fairly recent crossing of the border away from any official port of entry, have a due process right to a hearing on their right to remain.  Twentieth century case law had generally recognized that right, but the 1996 expedited removal statute was drafted in accordance with a revisionist theory that would deny it, building on a 1903 dictum that had left the question open.

Thuraissigiam had discussed the applicability of procedural due process to the administrative procedure for expedited removal from the interior, but he had never claimed that the Due Process Clause gave him a right to judicial review. Neither did the Ninth Circuit hold that the preclusion of review violated due process, and Alito’s statement that it did so is an easily fact-checked falsehood.

Nevertheless, Alito took the opportunity to embrace  the policy concerns that motivated the revisionists, and gave an erroneous account of the legal history to fortify his resolution of this reopened issue. Since the Knauff case of 1950, arriving noncitizens at authorized ports of entry have no due process entitlement to procedures beyond those that Congress gives them; Alito maintains that allowing those who have instead crossed the border at unauthorized locations to gain additional procedural rights immediately would create a “perverse incentive.” Thuraissigiam had “succeeded in making it 25 yards into U.S. territory before he was caught,” and Alito insists that those circumstances should not entitle him to procedural due process.

As the dissent points out, the opinion gives no guidance regarding the intended reach of this gratuitous due process analysis. How far from the border, and how long after an alleged entry, does the refusal of procedural protection persist?  The question is urgently important: at the time of Thuraissigiam’s arrest, expedited removal applied within 100 miles of the border, where more than half of the U.S. population lives. By 2020, the expedited removal regime had been expanded to apply nationwide.

Future Risks to Citizens and Noncitizens

It should be said first that the majority’s decision poses serious dangers to citizens – not only because citizens might be mistaken for immigrants, but also for citizens recognized as such. First, the decision is not based on the “plenary power” doctrine that limits the effect of constitutional rights in certain migration contexts, and the damage that it does to the Suspension Clause could equally affect any citizen. Second, Alito’s opinion threatens a future reopening of the meaning of the Suspension Clause, perhaps even return to the idea that the Suspension Clause guarantees no minimum content to the writ, which Justice Scalia had once floated but then dropped. Third, Alito’s manipulative originalism could be employed to exclude any novel form of detention from the scope of the Suspension Clause, or even any older form of detention that was not specifically mentioned in the sparse set of cases published prior to 1789.

Fourth, Alito’s narrow understanding of what makes detention unlawful could deny the protection of the writ to anyone who cannot show entitlement to immediate “simple” release from all custody. For example, a citizen properly convicted of a noncapital crime by a civilian or military tribunal would not be entitled to challenge being held for execution or banishment; a prisoner sentenced to death could not raise the claim that he has later become mentally incompetent for execution; and a child adjudicated delinquent could not challenge being sent to an adult prison. Some of these threats may seem contingent or remote, but weakening the guarantee of the writ is especially risky in the presence of a chief executive who flaunts his unchecked ability to declare emergencies and rule by decree.

Moreover, the concurring opinion of Justices Thomas and Gorsuch – two out of five votes – is even more threatening to citizens than Alito’s opinion. In their view, the original meaning of the Suspension Clause, to which the Court should return, is only a limit on “the circumstances in which Congress may give the executive power to detain without bail or trial based on suspicion of a crime or dangerousness.” No other interference with habeas corpus would be prohibited, and no other guarantee of habeas corpus would be given; any more is wishful thinking.

Noncitizens face more proximate threats, in addition to those facing citizens. The majority has  upheld expedited removal of some noncitizens from the interior of the United States, on the ground that their removal would not implicate due process, but did not spell out how near in time or space to a border-crossing they must be to lack protection. The Trump administration has activated the full extent of the statutory authorization to apply expedited removal; these procedures are now applied throughout the entire country and for the period of two years after an alleged arrival. With a few exceptions, section 1252(e) allows no judicial review of the lawfulness or constitutionality of an expedited removal order, including whether the individual is outside the scope of expedited removal or whether the reasons given are outside the scope of expedited removal.

One specific category immediately threatened by the decision might be children. Congress restricted the expedited removal process in 2008 by guaranteeing that unaccompanied children from countries other than Mexico and Canada would be channeled to the ordinary deportation procedure.  But Congress did not make any change to section 1252(e) to permit judicial enforcement of this restriction. On ancient principles of habeas corpus, children who are wholly outside the scope of the process ought to be protected against it by the writ.  But Alito’s opinion may eliminate the remedy for such flagrant illegality.

The decision may also threaten foreign students, foreign temporary workers and others lawfully present for a limited number of years. Section 1252(e) provides them no avenue for review if they are illegally subjected to expedited removal.

The implications for non-expedited removal depend on how seriously courts take Alito’s dismissal of the constitutional basis for INS v. St. Cyr.  Some of these concerns would not take effect immediately, because Congress amended other provisions on judicial review in 2005, to codify lessons of St. Cyr. The Supreme Court has dealt with some of these provisions as a matter of statutory interpretation in the intervening years, for example recently in Guerrero-Lasprilla v. Barr. So long as they remain in force, these provisions enable a judicial check on certain forms of executive illegality. However, the statutory scheme has some ambiguities or gaps, and for their future interpretation it may matter  whether they are read in light of a constitutional background protective of habeas corpus or as mere textual expressions of transient congressional preferences. And of course the continuation of the existing provisions is at the mercy of Congress, which may now regard itself as freed from constitutional direction.

The Nonconcurring Opinions

Four Justices objected to the majority opinion. Justice Breyer, joined by Justice Ginsburg, concurred in the judgment on much narrower grounds. For Breyer, Thuraissigiam’s legal and procedural claims really amounted to disagreements about the historical facts and fine-grained evaluation of the thoroughness of procedural compliance. Prior immigration cases did not support review of such issues on habeas, and they would not be within the scope of inquiry that the Suspension Clause demands, assuming arguendo that it applied. Breyer considered the detainee’s manner and recency of entry as a factor that would justify a lower level of inquiry; that represents an innovation, but it is not entirely surprising after Boumediene.  Breyer criticized Alito’s majority opinion for writing more broadly than the case required, particularly given the range of individuals and issues that expedited removal may involve, and for deciding a due process issue that the case did not present.

Characterizing the dispute as factual rather than legal is not unreasonable, given that Thuraissigiam sought to deduce the application of an erroneous legal standard from the discrepancy between the evidence and the conclusion rather than from any express explanation of the finding.  Regrettably, the system of expedited removal makes it easy to conceal unintended errors or deliberate flouting of law by border officials. What was supposed to be a threshold sorting has too often been a purposeful barrier. Thuraissigiam’s case was not the ideal vehicle for highlighting the radical inconsistency of 1252(e)’s sweeping preclusion of review with the Suspension Clause, but by their nature, expedited removal cases rarely make it into court at all.

Justice Sotomayor, joined by Justice Kagan, dissented comprehensively from the majority’s holding and analysis. They would have reaffirmed the principles of St. Cyr and Boumediene, and applied them faithfully to invalidate section 1252(e) as applied to Thursaissigiam. They also defended his entitlement to procedural due process. I have very few disagreements with Sotomayor’s account – for example in the discussion of extradition — and those are too slight to merit description here.

Conclusion

A century ago, even at the height of pseudoscientific racism and anti-Chinese bigotry, the Supreme Court was unwilling to abandon the Constitution’s guarantee of habeas corpus as a check on unlawful exclusion and deportation of migrants.  In 2020, a Supreme Court majority has thrown away that guarantee in a broadly dismissive opinion that threatens the liberty and safety of citizens and immigrants alike.

Image: The U.S. Supreme Court is illuminated on April 25, 2012 in Washington, DC. (Photo by Mark Wilson/Getty Images)

 

About the Author(s)

Gerald Neuman

J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, Co-Director of Harvard's Human Rights Program, Former Member of the Human Rights Committee (2011 to 2014)