It has been unfortunate, imo, that the nonsense Alberto Gonzales spewed about the Constitution not guaranteeing the writ of habeas corpus was treated seriously, and even defended here by some at daily kos. As has been repeatedly demonstrated, this is ridiculous. The mistake in the argument is due to the confusion between the recognition of the substantive right, which no serious person could truly question, and the jurisdiction of federal courts. And indeed, this tension between the Congress' power to establish the jurisidiction of the federal courts and the Judiciary's role as a bulwark for protecting the rights of individuals and the minority against the abuses of the majority is a very serious one.
Unlike the ridiculous arguments made in favor of Alberto Gonzales' stupidity, the issue of Congressional stripping of court jurisdiction merits serious discussion. More.
To first demonstrate how stale the originial "Was Gonzales right?" argument was, consider this comment from one of Gonzales' defenders:
. . . After a fair amount of discussion in support of that position, he finally reaches what I think you are trying to get at, and what I have repeatedly recognized, which is that one could say removing any recourse whatsoever to the writ is an unconstitutional "suspension."
No kidding. Since that is the basis of the argument it is nice that he finally gets around to it. But frankly, Justice Stevens said it better:
The dissent reads into Chief Justice Marshall’s opinion in Ex parte Bollman, 4 Cranch 75 (1807), support for a proposition that the Chief Justice did not endorse, either explicitly or implicitly. See post, at 14—15. He did note that "the first congress of the United States" acted under "the immediate influence" of the injunction provided by the Suspension Clause when it gave "life and activity" to "this great constitutional privilege" in the Judiciary Act of 1789, and that the writ could not be suspended until after the statute was enacted. 4 Cranch, at 95. That statement, however, surely does not imply that Marshall believed the Framers had drafted a Clause that would proscribe a temporary abrogation of the writ, while permitting its permanent suspension. Indeed, Marshall’s comment expresses the far more sensible view that the Clause was intended to preclude any possibility that "the privilege itself would be lost" by either the inaction or the action of Congress. See, e.g., ibid. (noting that the Founders "must have felt, with peculiar force, the obligation" imposed by the Suspension Clause).
The dissent from Scalia, and joined by Rehnquist and Thomas, is extremist claptrap. It woulod be surprising to see any thinking liberal adopt those views. More importantly, the MAJORITY said otherwise, and that is binding on the Attorney General of the United States.
Now, for the actual serious issue - Congressional control of federal court jurisdiction. Article III of the Constitution provides, in part:
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. . . .
In this article, David Cole explains the issue:
No issue has been more studiously avoided by the courts, and more assiduously studied by law professors, than congressional control over jurisdiction of the federal courts. For all intents and purposes, casebook sections on the issue have not needed major revision since 1869, when the Supreme Court decided Ex parte Yerger.1 Yet academic commentators have more than made up for the trees saved by the Supreme Court's reticence on the subject, producing a vast body of scholarship that Professor William Van Alstyne has described as "choking on redundancy."2 Here we go again.
It is easy to see why scholars have found the issue such a rich one. It presents in stark relief the fundamental paradox of a constitutional democracy: how to reconcile the antidemocratic character of a Constitution with democratic principles. Congressional control over federal jurisdiction is often justified as one of the ways this reconciliation is effected. Congress's power to limit the federal courts' jurisdiction places a check on the Court's otherwise potentially limitless antidemocratic power to say "what the law is." The language of Article III, the history of federal jurisdiction, and the Court's few decisions on point all suggest that Congress's power to circumscribe jurisdiction, and therefore judicial power is quite extensive. The Supreme Court's appellate jurisdiction is set forth in the Constitution but is expressly made subject to "such Exceptions ... as the Congress shall make."3 The Constitution left the creation of lower federal courts entirely to the discretion of Congress, and many have read that greater power to include the lesser power of creating federal courts with less than full constitutional jurisdiction. As an historical matter, Congress has never vested the federal courts with jurisdiction up to the limit authorized by the Constitution. And, the Supreme Court has upheld Congress's power to curtail both its own appellate jurisdiction4 and the lower federal courts' jurisdiction5 in the broadest terms.
That's the general issue. Why has it not been a more prominent controversy in the past? Cole says:
One reason the Court has rarely confronted this issue directly is that, at least since 1869, Congress's threats to curtail federal jurisdiction have been for the most part just that-empty threats.6 In the 1970s and 1980s, Congress repeatedly entertained proposals to restrict the jurisdiction of the courts over controversial issues such as school busing, abortion, and prayer in schools, but none of these proposals passed, and so the constitutional issue passed. But in 1996, Congress broke the taboo on such legislation, sharply limiting jurisdiction over claims presented by two classes of litigants: noncitizens and prisoners.7 It is no accident that Congress was able to accomplish with respect to noncitizens and prisoners what it had not accomplished with respect to busing, abortion, and school prayer. The latter issues inspire strong constituencies on both sides of the debate, making it difficult for Congress to transgress the jurisdiction-stripping taboo. But noncitizens and most prisoners have no vote, and are historically unpopular groups. Congress selectively targeted the most vulnerable among us for denial of federal court protection. Not coincidentally, the most extreme restrictions the 1996 Congress enacted fell on the doubly disadvantaged, noncitizens who have been convicted of crimes.
Cole does not mention another reason - Bill Clinton was shamefully cowardly and did not stand up against the reactionary Republican Congress. Anthony Lewis rightfully ripped Clinton on this.
We now have a Democratic Congress so, one hopes, jurisdiction stripping will not be on the agenda. But how about a restoration of jurisdiction? We have not talked enough about that. Will the Demnocratic Congress do anything to reverse some of the worst offenses of the Republican Congress of the past 12 years? Certainly the jurisdiction stripping on habeas corpus of last year must be reversed. And there are many other examples.
But I think the more interesting intellectual question is 'are there limits to the Congress' jurisdiction stripping power?' Cole argues that there is:
I will argue that the Suspension Clause plays a critical role in limiting Congress's power to eliminate judicial review over immigration decisions, and indeed over any government decisions that involve the imposition of custody. Second, the 1996 immigration statutes return us to a consideration of habeas corpus in its core form-as a means of testing the legality of federal executive detention. Until now, habeas corpus has been a subject of Federal Courts study almost entirely as a mechanism for federal court review of federal constitutional issues arising in connection with state criminal convictions. In that setting, the habeas petitioner has already obtained judicial review of all constitutional issues in another forum-in state court. In immigration cases, by contrast, habeas corpus may be the only form of judicial review an alien receives of the executive's decision to detain and expel him. The origins of habeas corpus lie in concerns about executive detention, and its application to executive decisions to detain and remove noncitizens under the immigration statutes returns us to those origins.
This is an interesting twist to the silly debate on Gonzales - rather than discussing the absurd argument that the Suspension Clause does not create a right to petition for a writ of habeas corpus - Cole instead argues that the Suspension Clause serves as a restriction on the Congress' power to limit court jurisdiction whenever it involves detention by the government. Not what Gonzales and his defenders had in mind I imagine.
The crux of Cole's argument is this:
The first constitutional constraint on Congress's power to restrict judicial review of immigration actions is that Congress may not deny all avenues for judicial redress of a constitutional claim. As the Supreme Court itself has acknowledged: "[All] agree that Congress cannot bar all remedies for enforcing federal constitutional rights."39 At least three constitutional problems would arise if all judicial review of an immigrant's constitutional challenge to removal were barred. First, such a bar would violate Article III of the Constitution because it would intrude on the courts' "essential function." As Justice Murphy stated, "Under our system there is no warrant for the view that the judicial power of a competent court can be circumscribed by any legislative arrangement designed to give effect to administrative action going beyond the limits of constitutional authority."40 Second, because removal entails a substantial deprivation of liberty, denial of a federal forum to review a constitutional challenge to removal would violate due process.41 Third, as I will argue below, denying a noncitizen any opportunity to challenge the constitutionality of his custody would violate the Suspension Clause, which requires the availability of habeas corpus relief for those detained by executive action contrary to law.
On the Suspension Clause, Cole argues:
The second restraint on Congress's power to limit the jurisdiction of the federal courts over immigration matters is contained in Article I, Section 9, which forbids suspension of the privilege of the writ of habeas corpus "unless when in cases of Rebellion or Invasion the public Safety may require it."61 As with the first restraint, the government does not dispute that this constitutional principle limits Congress's power to circumscribe the writ, but seeks to define those limits narrowly.
The government has argued, with some success in the courts thus far, that habeas review of an alien's removal must be preserved only when removal violates not just an immigration statute, but the Constitution itself.62 This argument collapses two distinct principles regarding, respectively, habeas corpus relief and judicial review of constitutional violations. I agree that the two principles are related, but in a very different way. The better view is that whenever the government detains an individual and bars all judicial review of the legality of her detention, it gives rise to a constitutional violation of both the Due Process Clause and the Suspension Clause. To hold someone in detention without affording her a judicial forum to test whether the detention is lawful (in any respect) is the very essence of a deprivation of liberty without due process. And a writ of habeas corpus provides a remedy for all executive detentions in violation of law, whether the immediate law violated is a statute, federal common law, or the Constitution. Thus, the Suspension Clause and the Due Process Clause, read together, impose a fundamental limit on Congress's control of federal jurisdiction: Congress may not authorize the executive to hold someone in detention without guaranteeing access to a court to test the legality of that detention.
It is interesting that Cole argues these issues in the context of immigration. Obviously, the fact that immigrants are noncitizens makes the application of the Constitution in full force less likely. To wit, Cole has invoked the facts where his argument would be weakest. Were it applied to citizens, it would appear to be manifest to me that Cole is correct.
The next level of analysis, if one accepts Cole's thinking, what of non-detention rights? What limits on jurisdiction stripping to protect say First Amendment rights? Or for those folks who hated the Kelo decision, the right to challenge a taking? These are important questions, and in some respects, there are no easy answers. As opposed to the question "Was Gonzales wrong?" Gonzales could not have been more wrong.