The privilege of the writ of habeas corpus, enshrined in the Constitution through the Suspension Clause, enables individuals to invoke judicial review to challenge the legality of the government’s restraints on their liberty.1 Last Term, in Department of Homeland Security v. Thuraissigiam,2 the Supreme Court held that the limited judicial review afforded to a noncitizen challenging an expedited removal order did not violate his rights under the Suspension Clause.3 In upholding this regime of limited judicial review for asylum seekers, the Court anchored its reasoning in the original meaning of the Suspension Clause and the clause’s protection of the writ as it existed in 1789.4 Yet the Court discussed case law after the Founding era without describing the weight of this more recent body of law in its decisionmaking.5 In turn, the lack of explanation around the role of post-1789 habeas law in the decision drives methodological confusion, opens the door to narrow interpretations of recent precedent in future habeas challenges, and potentially deepens the impact of increasingly expansive immigration restrictions.
The Illegal Immigration Reform and Immigrant Responsibility Act of 19966 (IIRIRA) bolstered resources for immigration law enforcement7 and curbed judicial review of a range of removal decisions.8 Under IIRIRA’s expedited removal provision, 8 U.S.C. § 1225(b), officials may order the removal of a noncitizen who was not admitted into the United States and cannot prove his continuous presence in the country over the preceding two-year period.9 If the noncitizen demonstrates a “credible fear of persecution,” then he may remain in the country and receive further consideration of his asylum application.10 If officials instead find that the noncitizen did not demonstrate a credible fear of persecution and order his removal, then the noncitizen may request review of the order by an immigration judge11 and pursue habeas corpus proceedings per 8 U.S.C. § 1252(e).12 Section 1252(e) outlines the limited habeas review available for expedited removal orders, foreclosing substantive review of the orders.13 Between 2010 and 2018, expedited removals accounted for around forty percent of the more than three million noncitizens ordered removed from the country.14
In 2017, a Sri Lankan man named Vijayakumar Thuraissigiam entered the United States without documentation or inspection.15 Immigration officials detained Thuraissigiam about twenty-five yards north of the Mexican border within a day of his entry.16 Upon his capture, Thuraissigiam “claimed a fear of returning to Sri Lanka” based on a past abduction and assault, though he did not explicitly connect those attacks to any “protected characteristics.”17 Officials concluded that he had not established a credible fear of persecution and ordered his expedited removal pursuant to § 1225(b).18 Thuraissigiam then filed a habeas petition, alleging that he had fled Sri Lanka after years of persecution, including torture and beatings based on his identity as a member of Sri Lanka’s Tamil ethnic minority and his work for Tamil politicians.19 He called for a “meaningful opportunity” to apply for asylum and asserted that the expedited removal process violated his rights under the Suspension Clause and Due Process Clause.20
The United States District Court for the Southern District of California dismissed Thuraissigiam’s petition for lack of subject matter jurisdiction.21 The district court emphasized the “narrow, limited, and explicit terms” of the habeas review allowed under § 1252(e), finding that the provision prohibited review of the credible fear finding.22 Furthermore, the court held that the review allowed under § 1252(e) did not violate the Suspension Clause since the provision “retain[s] some avenues of judicial review, limited though they may be.”23
The Ninth Circuit reversed and remanded.24 Writing for the unanimous panel, Judge Tashima25 held that § 1252(e) did not provide a meaningful opportunity for review of Thuraissigiam’s claims, thus violating the Suspension Clause.26 Citing the statutory text and Ninth Circuit precedent, the panel first found that § 1252(e) stripped the court of jurisdiction over Thuraissigiam’s claims.27 The panel then considered his constitutional challenge. Using the Supreme Court’s holdings in INS v. St. Cyr28 and Boumediene v. Bush29 as “analytical blueprint[s],”30 the panel conducted a two-step inquiry.31 First, upon review of common law history and case law from the “finality era” — a period from the late 1800s to the mid-1900s in which statutes limited judicial review of immigration challenges32 — the panel held that a noncitizen entering the country may invoke the Suspension Clause.33 Second, based on the finding that § 1252(e) “precludes review of the agency’s application of relevant law,” the panel held that the provision “violates the Suspension Clause as applied.”34
The Supreme Court reversed and remanded.35 Writing for the Court, Justice Alito36 held that “neither the Suspension Clause nor the Due Process Clause . . . require[d] any further review of [Thuraissigiam’s] claims” and that § 1252(e) was “constitutional as applied.”37 The Court first framed expedited removal as a means to mitigate the financial and administrative burden of removal proceedings38 and streamline consideration of fraudulent or dubious asylum claims.39
The Court then turned to Thuraissigiam’s claims under the Suspension Clause, grounding its inquiry in the scope of the writ as it existed in 1789 based on its reading of a footnote in Thuraissigiam’s brief.40 Consulting treatises and British and American legal history, the majority concluded that the writ at the time of the Founding “simply provided a means of contesting the lawfulness of restraint and securing release” rather than contesting a removal order and securing the right to enter or remain in the country, as asserted by Thuraissigiam.41 The Court found Thuraissigiam’s citation to two pre-1789 cases involving habeas review in noncitizen removal challenges unpersuasive42 and distinguished other early habeas decisions.43 Notably, the Court did not explore whether the writ “might have evolved since the adoption of the Constitution.”44
The majority also rebutted Thuraissigiam’s argument that finality-era cases and more recent precedent reflected a broader privilege to the writ under the Suspension Clause.45 The Court found that the finality-era decisions “were based not on the Suspension Clause but on the habeas statute and the immigration laws then in force.”46 Further, the Court differentiated Thuraissigiam’s case from Boumediene and St. Cyr.47
Finally, the Court held that the limited judicial review allowed under § 1252(e) did not violate the Due Process Clause given the circumscribed due process rights of noncitizens entering the country.48 Citing the “century-old rule” that the political branches of government determine what constitutes due process for noncitizens seeking entry,49 the majority found that § 1225(b) outlined all procedures to which Thuraissigiam was entitled.50 Since the Due Process Clause “provides nothing more” in terms of protections, the Court reasoned, the limited judicial review in § 1252(e) did not violate Thuraissigiam’s due process rights.51
Justice Thomas concurred, offering a brief history of the writ.52 He determined that § 1252(e) “bears little resemblance to a suspension as that term was understood at the [F]ounding” since the provision does not enable government detention and even “expressly permits habeas relief.”53
Justice Breyer concurred in the judgment,54 underscoring that the Court’s holding as to the Suspension Clause applied only to the case at hand.55 First, Justice Breyer argued that Thuraissigiam’s status as an individual who “has never lived in, or been lawfully admitted to, the United States” justified the limited scope of the habeas review provided in his case.56 Second, he found Congress’s limitation on habeas review “consistent with the Suspension Clause” and related precedent57 given the “factual” nature of two of Thuraissigiam’s claims58 and the “fine-grained questions of degree” raised in his procedural claims.59
Justice Sotomayor dissented,60 arguing that the majority misrepresented Thuraissigiam’s petition and misinterpreted the history of the writ.61 Calling for a “proper reframing” of Thuraissigiam’s claims,62 Justice Sotomayor characterized his petition as a challenge to the “legality of the exercise of executive power,” a claim that the law has “long permitted.”63 She argued that the majority offered a narrow interpretation of the writ, which has historically encompassed challenges outside of the detention context.64 She also rejected the majority’s analysis of the finality-era cases65 and recent habeas precedent.66 Further, she framed the majority’s due process holding as unnecessary and contrary to the provision of due process to all noncitizens in the country, a practice that the Court “has long affirmed.”67 While acknowledging the majority’s policy concerns, she concluded that the decision ignored the “minimal, yet crucial” role of the judiciary in upholding the Constitution68 and left “significant exercises of executive discretion unchecked.”69
Thuraissigiam surfaces lingering confusion around the proper role and understanding of historical precedent in applying the Suspension Clause.70 When considering Thuraissigiam’s claims, the Court anchored its inquiry in the original meaning of the clause and its protection of the writ as it existed in 1789.71 Nevertheless, the majority discussed case law after the Founding era without clarifying its reasoning or the weight of this body of law.72 This lack of clarity about the function of more recent habeas precedent in the Court’s decision creates methodological confusion, enables narrower interpretations of recent case law in future habeas challenges, and likely deepens the impact of an increasingly stringent immigration regime.
History plays a critical part in the interpretation of the Suspension Clause, though the Court has left open the possibility that the clause’s protections have expanded since the Founding era. The Suspension Clause restricts the suspension of the writ of habeas corpus,73 a writ viewed by the Founders as a “vital instrument for the protection of individual liberty.”74 To apply the clause, the Court typically draws on Founding-era history,75 stating that “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’”76 As recently as 2008, a majority of Justices noted that “[t]he Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments.”77
Although the Thuraissigiam Court grounded its reasoning in the Founding-era scope of the writ and expressly did not consider the writ’s post-Founding evolution,78 the Court nonetheless analyzed more recent habeas precedent. At the outset of the decision, the Court declared that “[t]he original meaning of the Suspension Clause is the subject of controversy.”79 Then, throughout the opinion, the Court treated 1789 as a kind of bright-line limit on the scope of relief, dismissing cases that did not involve Founding-era understandings of the writ,80 criticizing the Ninth Circuit panel and the dissent for failing to cite pre-1789 cases that adequately supported Thuraissigiam’s claims,81 and concluding that the focus on the scope of the writ as it existed in 1789 “doom[ed] [Thuraissigiam’s] Suspension Clause argument.”82 Still, despite this seemingly exclusive reliance on the Founding-era scope of the writ, the majority also discussed post-1789 case law, including the reach of the rulings in Boumediene and St. Cyr.83
The Court did not clearly explain the role of more recent habeas precedent in its decision. Moreover, potential reasons for its discussion of this body of law prove difficult to reconcile with the Court’s originalist approach. For example, the Court may have analyzed post-1789 case law simply to address all of Thuraissigiam’s arguments.84 Yet this choice would make confusing the majority’s repeated statements that Thuraissigiam could obtain relief based only on the scope of the writ as it existed in 1789.85 After all, if post-1789 law provided an independent avenue for relief, then the Court’s insistence on pre-1789 cases to validate the claim would seem misplaced. Meanwhile, if post-1789 law had no bearing on Thuraissigiam’s claims, then the Court would not have needed to discuss that body of law. Alternatively, the Court may have turned to post-1789 case law to extract underlying principles of the writ as it existed in 1789. If so, however, the Court probably would have articulated that objective86 and would not have considered recent cases that lacked strict originalist frameworks.87 Finally, the Court may have engaged with post-1789 case law to supplement its originalist inquiry due to the difficulties of historical analysis.88 Yet by that logic, the Court probably would have attributed its discussion of post-1789 precedent to those methodological pain points89 rather than reaffirming its commitment to Founding-era law.90
The absence of an explanation of the role of post-1789 case law in the Court’s decision drives methodological confusion for future judges and litigants. For instance, in cases analogous to Thuraissigiam — that is, cases involving petitions construed by courts to be limited to the Founding-era scope of the writ91 — the lack of clarity around the weight of contemporary cases in the Thuraissigiam Court’s decisionmaking may foster increased unpredictability and inconsistency in Suspension Clause inquiries.92
Furthermore, Thuraissigiam’s discussion of post-1789 case law may cast a shadow over future habeas challenges based on the evolution of the writ, even though the Court purported not to address that question. In particular, the Thuraissigiam majority issued rather narrow interpretations of recent habeas precedent, reflecting a “more limited vision” of the Suspension Clause that diverged from previous understandings.93 Accordingly, the opinion may set the stage for more restrained conceptions of the clause in cases involving petitions based on the expansion of the writ since 1789. Courts may perceive Thuraissigiam’s discussion of post-1789 case law, even if considered dicta, as an invitation to adopt similarly circumscribed views and as a suggestion that the writ has not evolved to include judicial review of removal orders.94 Of course, one could argue that the Court’s originalist inquiry will not bind decisions implicating the writ’s post-1789 expansion.95 Yet, perhaps in part because the Thuraissigiam majority did not clarify the precedential value of its discussion of post-1789 case law, early cases citing Thuraissigiam suggest that lower courts may cement the Court’s relatively restrictive understanding of the writ and even gradually align Founding-era and contemporary views of the writ.96
Increasingly stringent immigration policies deepen the weight of the Thuraissigiam decision and its “sweeping” holding.97 Indeed, two years after Thuraissigiam crossed the United States border, the government extended expedited removal to its statutory limits.98 Thus, in upholding the limited judicial review accorded to asylum seekers subject to expedited removal, Thuraissigiam created methodological confusion that may lead to narrow interpretations of the Suspension Clause and further entrenched the increasingly expansive, “shadowy regime” of expedited removal.99