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A Constitutional Theory of Habeas Power

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as ‘lawful’ custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. ‘A Constitutional Theory of Habeas Power’ is an inquiry into the newly-minted principle that the federal Constitution guarantees some quantum of habeas process.

I argue that Article III combines with the Suspension Clause to guarantee habeas process and to specify the exclusive conditions by which Congress may restrict it. My ‘Habeas Power Theory’ has two global principles: (1) that the constitution entitles all federal prisoners to some quantum of habeas (or substitute) process before an Article III judge; and (2) that, absent a formal suspension, the constitution does not permit Congress to restrict judicial power to determine what constitutes proof of lawful custody.

By cohering the new writ history, decisional law, and maxims of federal jurisdiction, I sketch a theory for how judges ought to use habeas to test different forms of federal power—for immigration, military, and criminal custody. ‘Habeas Power’ represents an entry in a new thread of habeas literature, growing out of the War-on-Terror litigation and focusing on what one might call the ‘core features’ of the writ. Methodologically, the Article embraces the renewed emphasis on pre-Revolutionary English writ practice and habeas suspension statutes. It is also the scholarship’s most extensive treatment of habeas jurisdiction as an Article III remedial power over federal custody. By formulating the habeas authority as a power of judges, I try to square an affirmative constitutional guarantee of habeas process with more established maxims of federal jurisdiction.

Constitutional Privileging

“Constitutional privileging” occurs when courts treat the constitutional status of a legal claim as a reason to afford it specialized procedural or remedial treatment—in effect providing to that claim a greater degree of judicial care and attention than its nonconstitutional counterparts receive. Though seldom scrutinized by courts and commentators, this practice occurs within a variety of doctrinal settings. For example, a stricter standard of harmless error review governs constitutional claims; district court findings of facts (and mixed findings) are subject to a stricter form of appellate review in constitutional cases; collateral relief from federal court judgments is more easily obtained in connection with constitutional claims; and so on. In these and other contexts, the Constitution counts as not just supreme law, which is lexically prior to nonconstitutional law, but also “preeminent law,” which deserves especially meticulous implementation and especially vigorous enforcement.

In this Article, I question both the conceptual soundness and practical desirability of constitutional privileging. I first propose and reject several theories of “intrinsic” constitutional preeminence, each of which identifies a distinctive (or seemingly distinctive) feature of the constitutional form as mandating the privileging of constitutional over nonconstitutional claims. I then outline an alternative, “extrinsic” defense of constitutional privileging, which characterizes the practice as a pragmatic response to the objective “importance” or “fundamentality” of many constitutional rules. Although this defense cannot be definitively rebutted, I suggest that it too is unpersuasive. I also draw attention to the problematic tendency of constitutional privileging to undermine the “passive virtues” of judicial decision-making, especially the familiar norm that calls for avoiding unnecessary adjudication of constitutional questions. Finally, I propose several doctrinal reforms, aimed at reducing courts’ reliance on the variable of constitutional status in the privileging of legal claims.

The Political Economy of Financial Rulemaking After Business Roundtable

In Business Roundtable v. S.E.C., the D.C. Circuit struck down the SEC’s proxy access rule. The court held that the SEC’s failure to perform an adequate cost-benefit analysis amounted to an arbitrary and capricious rulemaking that was not in accordance with law. The decision may be one of the most significant administrative law cases in a generation. If the D.C. Circuit adheres to its reasoning, federal agencies will no longer be able to satisfy their obligation to perform cost-benefit analyses by performing the sort of pro-forma analyses that they have been performing since the early 1980s when opponents of the regulatory state first started demanding cost-benefit analyses. Instead, they will have to perform serious cost-benefit analyses that can survive what appears to be a heightened form of hard-look scrutiny approaching de novo review. 

This note will explore the implications of the Business Roundtable decision by considering its application to rulemaking under the most important financial reform legislation since the Great Depression—the Dodd-Frank Act. This note surveys the impact that Business Roundtable will have on the gamut of political and private actors. In order to shore up their rules against court challenges, agencies will have to increase the number and quality of the economists on their staffs. This will increase the cost of rulemaking and reduce the range of rules that will pass through the new cost-benefit filters. It will result in a wide range of strategic behaviors on the part of private litigants and political actors since it raises the stakes for cost-benefit analysis mandates in statutes and executive orders.

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