Vladeck: Supreme Court May Take A Mulligan on Milligan

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.

This entry was posted in Civil Liberties. Bookmark the permalink.

3 Responses to Vladeck: Supreme Court May Take A Mulligan on Milligan

  1. Paul Gowder says:

    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?

  2. Steve Vladeck says:

    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…

  3. Steve Vladeck says:

    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…

Leave a Reply

Your email address will not be published. Required fields are marked *

Notify me of followup comments via e-mail. You can also subscribe without commenting.