This is a guest post authored by Kevin Thomson, a student at University of Minnesota Law School.

The Suspension Clause is back at the Supreme Court.  In March, the Court will hear oral arguments in Department of Homeland Security v. Thuraissigiam. The Court granted cert to consider whether the limited judicial review provided in immigration expedited removal proceedings violates the Suspension Clause.

But in answering that narrow question, the Court will have to confront several broader issues. Does the Suspension Clause serve a procedural or structural function? Is habeas corpus about the rights of the jailed or the wrongs of jailers? Is the underlying rationale of habeas corpus due process or separation-of-powers? The government argues that due process rights are determinative of habeas rights. The government’s position serves only to weaken habeas review of executive detention and is wrong on both historical and legal grounds. Habeas corpus properly functions as a separation of powers mechanism. Habeas corpus has long served as a structural check on the Executive; in a time of increased executive power and decreased respect for civil rights, such a check is vital.

The Suspension Clause of the United States Constitution provides that “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.” A statute that shuts off the availability of habeas corpus is held an unconstitutional “suspension” of the writ. Thuraissigiam is a Suspension Clause challenge to expedited removal proceedings. As the Trump Administration attempts to push expedited removal to its statutory limits, the case takes on a heightened significance. If the statute is upheld, those subject to rapid deportation will find no recourse in America’s judiciary. Their civil rights and liberties will be determined solely by their jailers.

Expedited removal allows low-level government officers to summarily order the removal of a foreign national who arrives at the border without proper documentation. If an individual expresses a fear of returning to her home country, she is given a credible fear interview by an asylum officer who determines whether that fear is legitimate. If her fear is found not credible, she can request de novo review in front of an immigration judge. The process is usually completed within one or two days.

Someone subject to expedited removal can only get in front of an Art. III judge through a habeas action. But 8 U.S.C. § 1252(e)(2), the statutory provision at issue in Thuraissigiam, limits habeas review to mistaken identity claims. Under the current law, an Art. III court cannot even review whether DHS complied with their own procedures. The issue in Thuraissigiam is whether that limitation violates the Suspension Clause. It is the Court’s first Suspension Clause case since the landmark decision Boumediene v. Bush.  In Boumediene, the Court held that the writ of habeas corpus extended to Guantanamo Bay, and that the procedures provided by Congress and the Bush Administration did not constitute an “adequate substitute” for habeas corpus. After Boumediene, there was confusion about the function and content of the Suspension Clause, which set off years of litigation that continues today. In Thuraissigiam the Court will have to face a resulting conceptual split on the purpose of habeas corpus.

The government pushes a due process theory of habeas. They argue in their brief that “[h]abeas review provides a mode of redress of denials of due process of law, it does not prescribe substantive protections beyond what Congress has provided.” If habeas serves only to vindicate due process, then where a detainee lacks due process she necessarily lacks habeas. By contrast, the ACLU argues for a separation-of-powers theory of habeas. The Suspension Clause, according to the ACLU, is an “essential structural check on the unlawful use of coercive executive power[.]” Its function as a check on power means turning way from “the rights of prisoners” and towards “the wrong of jailers.” Thus, the judicial power to review the legality of executive detention does not turn on the procedural rights of a particular detainee. Whichever of these theories the Court embraces will have enormous consequences for noncitizens and others who lack meaningful due process rights.

The Court in Thuraissigiam will follow the two-step analysis the Court used in Boumediene. Step One considers whether the Suspension Clause applies to a detainee. If so, Step Two asks whether the alternative procedure, in this case the expedited removal proceedings, provides an “adequate substitute” for habeas corpus review.

At Step One, the government argues that because Thuraissigiam is without due process rights, the Suspension Clause does not apply. Their argument contradicts the holding in Boumediene that the Suspension Clause applies to detainees at Guantanamo Bay, without deciding whether they possess due process rights. I believe the historical role of the Suspension Clause and the holding in Boumediene will prevent the Court from ending the case at Step One. It approaches absurdity to hold that the Suspension Clause extends to Guantanamo Bay but not within formal sovereign territory of the United States. Therefore, regardless of which theory of habeas is embraced, the Court may very well hold that the Suspension Clause reaches Thuraissigiam.

The real danger for habeas advocates is Step Two: what constitutes an “adequate substitute” to habeas review? If the Court embraces the government’s position, for those with minimal procedural rights, habeas will be ineffectual and stripped of any meaningful review.

Indeed, the Court may extend the reach of the Suspension Clause, while gutting it of any meaningful requirements. That is, even if the Clause applies to a detainee, it only requires procedure sufficient to satisfy a detainee’s due process rights. And where a detainee has minimal or no due process rights, habeas review can be delegated to Executive Branch adjudicative bodies subject to negligible Art. III oversight. For example, the government argues that because Thuraissigiam “has no recognized due process right to procedures beyond what Congress has provided,” the expedited removal proceeding “more than suffices under the Suspension Clause to protect them.”

This theory would turn habeas corpus, with its long and storied history, into a mere administrative procedure where the Executive Branch confirms what the Executive Branch alleged. Such a state of affairs is repugnant to the very heart of habeas as a tool for judicial review of executive detention. The ACLU warns in their brief that “[a] habeas theory that would permit Executive Branch oversight over its own actions to displace judicial review is patently inconsistent with the Suspension Clause as an indispensable mechanism for monitoring the separation of powers.” Furthermore, the historical origins of habeas corpus reveal that it served as tool of judicial power over the executive’s ability to detain. Moreover, the Court in Boumediene held that “even if we were to assume that the [administrative procedures] satisfy due process standards, it would not end our inquiry.” Habeas corpus goes straight “to the very tissue of the structure.”

In order to uphold the history of habeas corpus and the legacy of Boumediene, the Court should hold that, at a minimum, the Suspension Clause requires review of all legal claims made in habeas. Because expedited removal does not currently allow for such review, it should be held in violation of the Suspension Clause. American history is littered with examples of the detention and abuse of vulnerable people. Time and time again, the nation has sought an illusory security though mass detention and incarceration. Habeas corpus has, at times, frustrated this carceral impulse. It must continue to do so. The Court must not abdicate this essential check on executive power. Oral arguments for Thuraissigiam are March 2, 2020.