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(Bloomberg Opinion) -- In a sweeping decision with worrying implications for all immigrants, the Supreme Court has held that asylum-seekers rejected by immigration officials under an expedited system do not have the right to go to court to challenge their exclusion from the U.S.
The majority opinion, by stalwart conservative Justice Samuel Alito, relied on originalist historical analysis to whittle down the meaning of habeas corpus to its most minimal protections. Along the way, Alito minimized and arguably misrepresented the most famous antislavery judicial decision of all time: Somerset v. Stewart, a 1772 case in which the greatest English common law judge of the era held that an enslaved Jamaican could not be forced to return to the West Indies but must be allowed to live freely in England.
The specific law at issue in today’s case, Department of Homeland Security v. Thuraissigiam, is a provision of the wordily named Illegal Immigration Reform and Immigrant Responsibility act, known as IIRIRA. The law says that when a person enters the U.S., is detained at or near the border and seeks asylum, an immigration officer can interview the person and make a decision about whether the asylum-seeker has a “credible fear” of persecution that would qualify for asylum.
If the answer is yes, the asylum-seeker gets a full hearing. If the answer is no, then the seeker’s case is reviewed by a supervisor and, if the asylum-seeker asks for it, by an immigration judge. This process is known as expedited review — and under the federal law, there is no way for the asylum-seeker to go to a regular federal court and seek review of the decision.
Vijayakumar Thuraisiggiam is a Sri Lankan who entered the U.S. on the southern border and was denied asylum by expedited review. His lawyers argued that denying him the chance to go before a federal court amounted to a denial of the right to habeas corpus — the ancient right not to be detained without your detention being reviewed by a judge. The U.S. Court of Appeals for the Ninth Circuit agreed, holding that the IIRIRA rule on expedited review amounted to an unlawful suspension of asylum-seekers’ habeas corpus rights.
In deciding the case the other way, Alito focused on the historical meaning of the habeas right. In essence, he argued that habeas corpus only guarantees a right not to be detained without a judicial hearing. It does not, according to Alito, include a right to argue to a court that you should be allowed to remain in the United States.
For good measure, Alito also held that for noncitizens seeking initial entry into the country, constitutional due process does not require a judicial hearing; immigration officers’ judgments are enough.
It must be said that the originalist approach to determining what habeas corpus should mean is profoundly unsatisfying — as is much constitutional originalism. Habeas corpus today has evolved significantly since 1787, when the framers put it in the Constitution. Among other things, habeas developed over the 19th century to guarantee judicial supervision of a range of administrative actions in the context of immigration. Alito effectively dismissed or explained away those developments.
Even under the originalist frame, however, Alito’s opinion got it wrong. Somerset’s case is the famous and dramatic example. James Somerset had traveled to England with his enslaver, escaped, and been recaptured. The enslaver detained him on a ship bound for Jamaica and re-enslavement.
Lord Mansfield, the judge who over his career did more than anyone else to update the common law for modern economic conditions, granted Somerset’s habeas petition. The thrust of his holding was that slavery was against natural law, and so could only be sustained where there were written laws in place to promote it, like Jamaica or the North American colonies. Because Somerset was in England and there was no law establishing slavery there, he had to be released. The case sent shivers down the spines of slaveholders everywhere, and was used by enslaved people and abolitionists as a sword to fight for emancipation. Dred Scott, another enslaved person, used Somerset’s case as his lead precedent in his own ultimately unsuccessful effort to demand freedom in the United States.
As Justice Sonia Sotomayor pointed out in her dissent, the habeas order in Somerset’s case effectively allowed him to remain in England. That illustrated the broad reach of habeas in the founding era.
Alito responded that although Somerset’s ability to remain in England may have been a “collateral consequence” of his relief from the ship, it was not “due to” the habeas order.
It’s a shame to see the Supreme Court in the Year of Our Lord 2020 minimizing the meaning of this most important antislavery case. Somerset’s case demonstrates that the English courts in 1772 were prepared to use habeas to ensure the righting of legal wrongs. The rights-denying spirit of Alito is terribly, tragically far from the rights-expanding spirit of Mansfield.
More serious still are the broader legal effects of today’s decision. Due process of law should not be deemed inapplicable where only immigration officers, not federal courts, have heard applicants’ claims. And if asylum-seekers at the border don’t have the right to habeas corpus, we run the risk of future decisions that deny that right to immigrants, documented as well as undocumented, who have lived in the United States.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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