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.
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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…