My colleague Stephen Vladeck has a guest column at JURIST in which he looks at Jose Padilla and the Mulligan Problem. It’s a very clear explanation that should appeal to both lawyers and non-lawyers alike.
Recent Bluessky Posts- Israel may notch some tactical successes with its aggressive policies against West Bank settlers, Gaza, Southern Lebanon, and of course maybe maybe Iran, but I foresee a major strategic defeat in the expansion & entrenchment of international pariah status plus loss of support (and $) from the US. March 25, 2026 Michael Froomkin
- So I know the USAO say that the error was not due to “lack of diligence and care” by the signing attorneys. If they’re underbussing the ICE attorneys I fully expect them to waive privilege between ICE counsel and the USAO on this, and for ICE counsel to testify about whether this was intentional. March 25, 2026 Will Li
- All talk. Great talk, but that's not enough for this moment. March 25, 2026 Michael Froomkin
- Jotwell Crim: Ji Seon Song, The Ideology of Community Supervision, JOTWELL (March 26, 2026) (reviewing Renagh O’Leary, Supervising Sentencing, 57 U.C. Davis L. Rev. 1931 (2024); Renagh O’Leary, Ideological Testing, 103 N.C. L. Rev. 909 (2025)), crim.jotwell.com/the-ideology.... March 25, 2026 Jotwell
- Ex-congressman David Rivera trial (illegal lobbying, not election fraud as usual) tidbit: Defendants "referred to Mr. Rubio as “el cubanito,” or the little Cuban, ...; Mr. Maduro was “el guagüero,” or the bus driver, and Mr. Trump was “el loco,” or the crazy one." www.nytimes.com/2026/03/24/u... March 25, 2026 Michael Froomkin
He makes a very scary point about the likelihood of the Court just bouncing it to Congress, and Congress complying… but… suppose Congress did pass a law suspending the writ. Would that law, Milligan or otherwise, be constitutional? Can we rely on Scalia to vote as a good little originalist that “Rebellion or Invasion” as the constitionally prescribed condition for suspending the writ means “Rebellion or Invasion” and not “amorphous fears of terrorism?
Resisting the temptation to talk in the third person, I think that _that_ is the real question… The Supreme Court has _never_ even tried to construe the language of the Suspension Clause, most recently bending over backwards to avoid doing so in INS v. St. Cyr, 533 U.S. 289 (2001). [Although it’s possible that the REAL ID Act of 2005 will render the constitutional question presented in St. Cyr entirely unavoidable, but I digress…]
The problem is that the government’s argument on this point is immediately self-apparent: Jose Padilla, if he really _is_ a member of al Qaeda, is “invading” the U.S. just as the saboteurs did in _Quirin_… The better hook, I think, would not be the “rebellion or invasion” prong of the Suspension Clause, but the “when . . . the public safety may requite it” prong. Even if this _is_ an “invasion,” does the “public safety” really require suspension of the great writ? I sure hope not…
Resisting the temptation to talk in the third person, I think that _that_ is the real question… The Supreme Court has _never_ even tried to construe the language of the Suspension Clause, most recently bending over backwards to avoid doing so in INS v. St. Cyr, 533 U.S. 289 (2001). [Although it’s possible that the REAL ID Act of 2005 will render the constitutional question presented in St. Cyr entirely unavoidable, but I digress…]
The problem is that the government’s argument on this point is immediately self-apparent: Jose Padilla, if he really _is_ a member of al Qaeda, is “invading” the U.S. just as the saboteurs did in _Quirin_… The better hook, I think, would not be the “rebellion or invasion” prong of the Suspension Clause, but the “when . . . the public safety may require it” prong. Even if this _is_ an “invasion,” does the “public safety” really require suspension of the great writ? I sure hope not…