Habeas Privilege Origination and DHS v. Thuraissigiam


Lee Kovarsky

121 Columbia Law Review Forum 23


Does the Constitution guarantee a habeas Privilege or not? Even though the Supreme Court appeared to answer this foundational habeas question in Boumediene v. Bush, it seemed to have unceremoniously rescinded that answer in DHS v. Thuraissigiam. This Piece, using Thuraissigiam as a starting point, links this remarkable doctrinal instability to deficits in the associated habeas theory: The legal community is short on persuasive accounts of how the Constitution “originates” the habeas Privilege.

The basic problem is rooted in the tension between a literalist reading of the Suspension Clause, which textually formulates nothing more than an antisuspension rule, and other indicia of constitutional meaning that suggest a broader habeas guarantee—things like history, Framers’ intent, public understanding, and constitutional structure. If one believes that the Constitution enshrines the Privilege, then a puzzle follows: What is the constitutional mechanism that creates it? The legal community has not coalesced around a coherent origination theory, and the Supreme Court reflexively assumes that the Suspension Clause must be the font of all constitutional habeas law.

That casual assumption undermines basic rule of law virtues associated with clarity and predictability. Because the Suspension Clause is so ill-suited to origination work (both textually and structurally), undercooked theories treating it as the exclusive source of constitutional habeas law have sown confusion. To facilitate some doctrinal stability, the legal community ought to generate stronger theories about whether and how the Constitution originates the habeas Privilege, and the Supreme Court ought to adopt one.

Full Citation

Lee Kovarsky, Habeas Privilege Origination and DHS v. Thuraissigiam, 121 Columbia Law Review Forum 23 (2021). View Online