The Supreme Court's Attack on Habeas Corpus

Prof. Gerald Neuman, Aug. 25, 2020

"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. ... 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."

Prof. Gerald L. Neuman is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, and Co-Director of its Human Rights Program.  From 2011 to 2014, he was a member of the Human Rights Committee. He is the author of Strangers to the Constitution: Immigrants, Borders and Fundamental Law (Princeton 1996), and co-author of the casebook Human Rights (with Louis Henkin et al., Foundation Press). Prior to joining HLS in 2006, he served on the faculties of the University of Pennsylvania Law School (1984-1992) and Columbia Law School (1992-2006).