Article 1, Section 9, Clause 2 — Suspension Clause And Writ Of Habeas Corpus

Article I, Section 9, Clause 2:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

This Clause is the only place in the Constitution in which the Great Writ is mentioned, a strange fact in the context of the regard with which the right was held at the time the Constitution was written[1](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn1art1 " R. Walker, The American Reception of the Writ of Liberty (1961). ") and stranger in the context of the role the right has come to play in the Supreme Court’s efforts to constitutionalize federal and state criminal procedure.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn2art1 " See . ")

Only the Federal Government and not the states, it has been held obliquely, is limited by the Clause.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn3art1 " Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917). ") The issue that has always excited critical attention is the authority in which the Clause places the power to determine whether the circumstances warrant suspension of the privilege of the Writ.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn4art1 " In form, of course, Clause 2 is a limitation of power, not a grant of power, and is in addition placed in a section of limitations. It might be argued, therefore, that the power to suspend lies elsewhere and that this Clause limits that authority. This argument is opposed by the little authority there is on the subject. 3 The Records of the Federal Convention of 1787, at 213 (Max Farrand ed., 1937); Ex parte Merryman, 17 F. Cas. 144, 148 ( No. 9487) (C.C.D. Md. 1861); but cf. 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 464 (Edmund Randolph, 2d ed. 1836). At the Convention, Gouverneur Morris proposed the language of the present Clause: the first section of the Clause, down to “unless” was adopted unanimously, but the second part, qualifying the prohibition on suspension was adopted over the opposition of three states. 2 Farrand, supra, at 438. It would hardly have been meaningful for those states opposing any power to suspend to vote against this language if the power to suspend were conferred elsewhere. ") The Clause itself does not specify, and although most of the clauses of Section 9 are directed at Congress not all of them are.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn5art1 " Cf. Clauses 7, 8. ") At the Convention, the first proposal of a suspending authority expressly vested “in the legislature” the suspending power,[6](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn6art1 " 2 Records of the Federal Convention of 1787, at 341 (Max Farrand ed., 1937). ") but the author of this proposal did not retain this language when the matter was taken up,[7](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn7art1 " Id. at 438. ") the present language then being adopted.[8](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn8art1 " Id. ") Nevertheless, Congress’s power to suspend was assumed in early commentary[9](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn9art1 " 3 Joseph Story, Commentaries on the Constitution of the United States 1336 (1833). ") and stated in dictum by the Court.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn10art1 " Ex parte Bollman, 8 U.S. (4 Cr.) 75, 101 (1807). ") President Abraham Lincoln suspended the privilege on his own motion in the early Civil War period,[11](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn11art1 " Cf. J. Randall, Constitutional Problems Under Lincoln 118–39 (rev. ed. 1951). ") but this met with such opposition[12](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn12art1 " Including a finding by Chief Justice Roger Taney on circuit that the President’s action was invalid. Ex parte Merryman, 17 F. Cas. 144 ( No. 9487) (C.C.D. Md. 1861). ") that he sought and received congressional authorization.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn13art1 " Act of March 3, 1863, 1, 12 Stat. 755. See George Sellery, Lincoln’s Suspension of Habeas Corpus as Viewed by Congress, 1 U. Wis. History Bull. 213 (1907). ") Three other suspensions were subsequently ordered on the basis of more or less express authorizations from Congress.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn14art1 " The privilege of the Writ was suspended in nine counties in South Carolina in order to combat the Ku Klux Klan, pursuant to Act of April 20, 1871, 4, 17 Stat. 14. It was suspended in the Philippines in 1905, pursuant to the Act of July 1, 1902, 5, 32 Stat. 692. Cf. Fisher v. Baker, 203 U.S. 174 (1906). Finally, it was suspended in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, 67, 31 Stat. 153 (1900). Cf. Duncan v. Kahanamoku, 327 U.S. 304 (1946). For the problem of de facto suspension through manipulation of the jurisdiction of the federal courts, see discussion under Article III, . ")

When suspension operates, what is suspended? In Ex parte Milligan,[15](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn15art1 " 71 U.S. (4 Wall.) 2, 130–131 (1866). ") the Court asserted that the Writ is not suspended but only the privilege, so that the Writ would issue and the issuing court on its return would determine whether the person applying can proceed, thereby passing on the constitutionality of the suspension and whether the petitioner is within the terms of the suspension.

Restrictions on habeas corpus placed in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)[16](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn16art1 " Pub. L. No.

, §§ 101–08, 110 Stat. 1214, 1217–26, amending, inter alia, 28 U.S.C. §§ 2244, 2253, 2254, 2255, and Fed. R. App. P. 22. ")

104-132

, §§ 101–08, 110 Stat. 1214 , 1217–26, amending, inter alia, 28 U.S.C. §§ 2244, 2253, 2254, 2255, and Fed. R. App. P. 22 . and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) have provided occasion for further analysis of the scope of the Suspension Clause. AEDPA’s restrictions on successive petitions from state prisoners are “well within the compass” of an evolving body of principles restraining “abuse of the writ,” and hence do not amount to a suspension of the Writ within the meaning of the Clause.[17](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn17art1 " Felker v. Turpin, 518 U.S. 651 (1996). ") Interpreting IIRIRA so as to avoid what it viewed as a serious constitutional problem, the Court in another case held that Congress had not evidenced clear intent to eliminate federal court habeas corpus jurisdiction to determine whether the Attorney General retained discretionary authority to waive deportation for a limited category of resident aliens who had entered guilty pleas before IIRIRA repealed the waiver authority.[18](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn18art1 " INS v. St. Cyr, 533 U.S. 289 (2001). ") “[At] the absolute minimum,” the Court wrote, “the Suspension Clause protects the writ as it existed in 1789. At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.” [19](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn19art1 " 533 U.S. at 301 (internal quotation marks and citation omitted). ")

Building on its statement concerning the “minimum” reach of the Suspension Clause, the Court, in Department of Homeland Security v. Thuraissigiam, explored what the habeas writ protected, as it existed in 1789.[20](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn20art1 " 140 S. Ct. 1959, 1968–69 (2020). ") Thuraissigiam involved a Suspension Clause challenge to a provision in IIRIRA limiting when an asylum seeker could seek habeas review to challenge a removal decision and stay in the United States.[21](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn21art1 " In relevant part, IIRIRA limited the review that an alien in expedited removal proceedings could obtain through a habeas petition by allowing habeas review of three matters: (1) whether the petitioner was an alien; (2) whether the petitioner was “ordered removed” ; and (3) whether the petitioner had already been granted entry as a lawful permanent resident, refugee, or asylee. See 8 U.S.C. § 1252(e)(2)(A)–(C). The asylum seeker in Thuraissigiam challenged these jurisdictional limits, arguing they precluded review of a determination that he lacked a credible fear of persecution in his home country, of which an affirmative finding would enable him to enter the United States. Thuraissigiam, 140 S. Ct. at 1966–68. ") Proceeding on the assumption that the Suspension Clause only prohibited limitations on the common-law habeas writ,[22](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn22art1 " The respondent in Thuraissigiam stated “there is no reason” for the Court to consider anything beyond whether the writ of habeas corpus, as it existed in 1789, encompassed the relief sought. Thuraissigiam, 140 S. Ct. at 1969 & n.12. ") the Court concluded that the Writ at the time of the Founding “simply provided a means of contesting the lawfulness of restraint and securing release.” [23](https://www.law.cornell.edu/constitution-conan/article-1/section-9/clause-2/suspension-clause-and-writ-of-habeas-corpus#fn23art1 " <span class="cite cite-type-case" full="Department of Homeland Security v. Thuraissigiam,