Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Vijayakumar Thuraissigiam

No. 19-161

IN THE

Supreme Court of the United States

____________________

DEPARTMENT OF HOMELAND SECURITY, ET AL.,

Petitioners,

v.

VIJAYAKUMAR THURAISSIGIAM,

Respondent.

____________________

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

____________________

BRIEF OF LEGAL HISTORIANS AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

____________________

MICHAEL J. WISHNIE

WILLIAM O. DOUGLAS

CLINICAL PROFESSOR OF

LAW

YALE LAW SCHOOL†

127 Wall Street

New Haven, CT 06511

(203) 436-4780

michael.wishnie@yale.edu

ANTON METLITSKY

(Counsel of Record)

JENNIFER B. SOKOLER

DAVID COHEN

ANDREA SAVDIE

ETHAN M. SCAPELLATI

O’MELVENY & MYERS LLP

Times Square Tower

7 Times Square

New York, N.Y. 10036

(212) 326-2000

ametlitsky@omm.com

ANNA O. MOHAN*

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20036

(202) 383-5300

*Admitted only in Virginia; supervised

by principals of the firm

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI .............................................. 1

SUMMARY OF ARGUMENT................................... 1

ARGUMENT ............................................................. 4

I.

THE COMMON LAW WRIT TESTED

THE LEGALITY OF A WIDE RANGE

OF RESTRAINTS ON LIBERTY ................ 4

A. The Common Law Writ Was

Defined By its Function:

Ensuring That Officials Acting in

the King’s Name Did Not Abuse

Their Power.......................................... 5

B. Judges Used The Writ to Ensure

that New Restraints on Liberty

Conformed to Law................................ 7

C. The Common Law Writ Would

Have Extended to Persons Such

as Respondent .................................... 12

1. The Common Law Writ

Extended to Foreigners

With Limited Ties to the

Crown ......................................... 12

2. The Writ Applied to Foreign

Nationals Detained For

Transfer...................................... 15

3. Relief Was Not Limited to

Release from Detention ............. 17

II. HABEAS REVIEW ENCOMPASSED

THE APPLICATION OF LAW TO

FACTS ........................................................ 19

ii

TABLE OF CONTENTS

(continued)

Page

III. THE COMMON LAW WRIT

REMAINED AVAILABLE IN TIMES

OF CRISIS ................................................. 22

A. The Common Law Writ Was

Available Even When Judicial

Review Might Interfere with

Important Policy Objectives .............. 22

B. The Framers Understood that

Habeas Would Remain Available

Regardless of Expediency .................. 26

CONCLUSION ........................................................ 29

LIST OF AMICI CURIAE ....................................... 1a

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Boumediene v. Bush,

553 U.S. 723 (2008) ..............................................12

Booy Booysen and John Jurgenson

Brandt, PRO, ADM1/3677, folio 262

(K.B. 1758) ...........................................................14

Bourn’s Case,

Cro. Jac. 543, 79 Eng. Rep. 465 (K.B. 1619) .........6

Bourn’s Case,

Palmer 55, 81 Eng. Rep. 996 (K.B. 1619) .............6

Bushell’s Case,

124 Eng. Rep. 1006 (C.P. 1670) .............................9

Case of the Hottentot Venus,

104 Eng. Rep. 344 (K.B. 1810) .................. 9, 15, 20

The Case of Three Spanish Sailors,

96 Eng. Rep. 775 (C.P. 1779) ...............................14

Cumberford’s Case,

TNA, KB16/1/6 (K.B. 23 Jan. 1697) ....................25

Darnel’s Case,

3 How. St. Tr. 1 (K.B. 1627) ................................23

Depremont’s Case,

TNA, KB11/14 (K.B. 7 Feb. 1690) .......................25

Dr. Groenvelt’s Case,

91 Eng. Rep. 1038 (K.B. 1702) ..............................9

DuCastro’s Case,

92 Eng. Rep. 816 (1697) ...................................3, 15

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Edwards’s Case,

TNA, KB29/251/67d and KB21/4/13

(K.B. 1609) ...........................................................18

Ex parte Bollman,

8 U.S. (4 Cranch) 75 (1807) .............................2, 21

Ex parte D’Olivera,

7 F. Cas. 853 (C. C. D. Mass. 1813) ....................28

Ex Parte Randolph,

20 F. Cas. 242 (C.C. Va. 1833).............................21

Fuller’s Case,

TNA, KB11/14 (K.B. 23 Jan. 1690) .....................24

Gardener’s Case,

Cro. Eliz. 821, 78 Eng. Rep. 1438

(K.B. 1600) .............................................................9

Good’s Case,

96 Eng. Rep. 137, 1 Black. W. 251

(K.B. 1760) ...........................................................19

Hans Anderson, et al., The National

Archives, London (Kew) [PRO]

ADM1/3680, folio 478 (K.B. 1778) .......................13

Hetley v. Boyer and Mildmay,

79 Eng. Rep. 287 (K.B. 1613) ................................9

Hollingshead’s Case,

91 Eng. Rep. 307 (K.B. 1702) ................................9

INS v. St. Cyr,

533 U.S. 289 (2001) ...............................................2

Jacob Lilliquest, et al.’s Case, PRO,

ADM1/3678, folios 123, 137 (K.B. 1759) .............13

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Lister’s Case,

88 Eng. Rep. 17 (K.B. 1721) ................................10

Lockington’s Case,

Bright. (N.P.) 269 (Pa. 1813) .........................27, 28

Murray’s Case,

TNA, KB 145/17/29 (4 July 1677) .......................16

R. v. Delaval,

97 Eng. Rep. 913 (K.B. 1763) ..............................10

R. v. Lee,

83 Eng. Rep. 482 (K.B. 1676) ........................10, 18

R. v. Schiever,

97 Eng. Rep. 551 (K.B. 1759) ..............................14

R. v. Stapylton

(K.B. 1771) .............................................................9

R. v. Turlington,

97 Eng. Rep. 741 (K.B. 1761) ........................10, 21

Somerset v. Stewart,

20 Howell’s State Trials 1 (K.B.

1772) ........................................................... 8, 15, 16

Thomas Miller’s Case,

96 Eng. Rep. 518, 2 Black. W. 881

(C.P. 1773) ............................................................19

United States v. Anderson,

24 F. Cas. 813 (C.C.D. Tenn. 1812) .....................11

Yamataya v. Fisher,

189 U. S. 86 (1903) ...............................................15

Constitutional Provisions

U.S. Const. art. I, § 9, cl. 2 ....................................1, 27

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Rules

Sup. Ct. R. 37.3(a) .......................................................1

Sup. Ct. R. 37.6 ...........................................................1

Statutes

8 U.S.C. § 1252(e) ........................................................1

1777 Act, 17 Geo. 3, c.9 (Feb. 20, 1777

to Jan. 1, 1778).....................................................27

Other Authorities

1 William Blackstone, COMMENTARIES

ON THE LAWS OF ENGLAND (21st ed.

1844) .....................................................................25

1 William Blackstone, 1 COMMENTARIES

ON THE LAWS OF ENGLAND (1765) ..........................7

Denver Brunsman, THE EVIL

NECESSITY: BRITISH NAVAL

IMPRESSMENT IN THE EIGHTEENTHCENTURY ATLANTIC WORLD (2013) ..................8, 23

Sir Edward Coke, THE FOURTH PART OF

THE INSTITUTES OF THE LAWS OF

ENGLAND (1644) .....................................................6

K. Costello, Habeas Corpus and Military

and Naval Impressment, 1756-1816, 29

J. Legal Hist. 215 (2008) .....................................13

J.R. Dinwiddy, The Use of the Crown’s

Power of Deportation Under the

Aliens Acts, 1793-1826, 41 Hist. Res.

193 (1968) .............................................................16

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Eric M. Freedman, HABEAS CORPUS:

RETHINKING THE GREAT WRIT OF

LIBERTY (2001) .....................................................27

Eric M. Freedman, Hamdi and the Case

of the Five Knights, Legal Times

(Feb. 3, 2003)........................................................23

Eric M. Freedman, MAKING HABEAS

WORK (2018) ............................................... 7, 11, 15

Paul D. Halliday & G. Edward White, The

Suspension Clause: English Text,

Imperial Contexts, and American

Implications, 94 Va. L. Rev. 575 (2008) ...... passim

Paul D. Halliday, HABEAS CORPUS:

FROM ENGLAND TO EMPIRE (2010)............... passim

11 HALSBURY’S LAWS OF ENGLAND (3d

ed. 1955) .................................................................6

Archibald Hamilton, TREATISE ON

IMPRESSING (1806), reprinted in 8

Irish Jurist (N.S.) 117 (1973) ..............................24

Mark Kishlansky, Tyranny Denied: Charles

I, Attorney General Heath, and the Five

Knights’ Case, 42 Hist. J. 53 (1999) ....................23

Law Report, Times (London), Jan. 26, 1811 ............24

Law Report, Times (London), Jan. 30, 1786 ............10

Law Report, Times (London), July 2, 1791 ................7

Law Report, Times (London), May 26, 1808 ............20

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Luther Martin, Genuine Information VIII

(Jan. 22, 1788), reprinted in 15

DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION 434

(John P. Kaminski & Gaspare J. Saldino

eds., 1984) ............................................................27

Gerald L. Neuman, Habeas Corpus,

Executive Detention, and the

Removal of Aliens, 98 Colum. L. Rev.

961 (1998) .............................................................28

James Oldham, THE MANSFIELD

MANUSCRIPTS AND THE GROWTH OF

ENGLISH LAW IN THE EIGHTEENTH

CENTURY (1992)......................................................9

James Oldham, New Light on

Mansfield and Slavery, 27 J. British

Studies 45 (1988) .............................................8, 15

James Oldham, Some Effects of War on the

Law in Late Eighteenth- and Early

Nineteenth Century England, in

CHALLENGES TO AUTHORITY AND THE

RECOGNITION OF RIGHTS: FROM MAGNA

CARTA TO MODERNITY 142 (Catharine

MacMillan & Charlotte Smith, eds. 2018) ..........20

James Oldham & Michael Wishnie, The

Historical Scope of Habeas Corpus

and INS v. St. Cyr, 16 Geo. Immigr.

L.J. 485 (2002) .....................................................17

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Provincial Case File No. 22344, New

Hampshire State Archives ..................................11

2 THE RECORDS OF THE FEDERAL

CONVENTION OF 1787 (Max Farrand

ed. rev. ed. 1966) ..................................................27

S. Seddon to J. Clevland, 14 Dec. 1759,

PRO ADM 1/3677 .................................................13

SIR MATTHEW HALE’S THE PREROGATIVE

OF THE KING (The Publications of the

Selden Society, vol. 92) (Yale,

D.E.C., ed., London: Bernard

Quaritch, 1975) ......................................................7

1

INTEREST OF AMICI1

This case raises the question whether the federal

courts have jurisdiction to review habeas corpus petitions filed by noncitizens apprehended in the United

States and subject to expedited removal orders. Amici

curiae are among the nation’s foremost scholars of legal history with expertise in English legal history

prior to 1789 and/or early American history. Amici

have a professional interest in ensuring that the

Court is fully and accurately informed regarding the

historical scope of the common law writ of habeas corpus that, under this Court’s precedents, is properly

considered in evaluating issues raised under the Suspension Clause. U.S. Const. art. I, § 9, cl. 2.

SUMMARY OF ARGUMENT

Amici wish to clarify two points bearing on this

Court’s analysis of the constitutionality of the statutory bar2 to habeas review of expedited removal orders: the availability and the nature of habeas corpus

review at common law. Historical evidence has long

Counsel for amici state that no counsel for a party authored this brief in whole or in part, and no person other than

amici or their counsel made any monetary contribution intended

to fund the preparation or submission of this brief. Sup. Ct. R.

37.6. All parties have consented to the filing of this brief. Sup.

Ct. R. 37.3(a).

1

2

Section 1252(e) prohibits judicial review of expedited removal orders in habeas proceedings except to assess: (i) whether

the petitioner (a) “is an alien” (b) subject to an expedited removal

order; and/or (ii) “whether the petitioner . . . is an alien lawfully

admitted for permanent residence [or was previously granted

refugee or asylee status].” 8 U.S.C. § 1252(e). Respondent’s

claims are not encompassed by these narrow exceptions.

2

been considered by the Court as important in interpreting the Great Writ’s availability and scope as

guaranteed by the Suspension Clause and federal habeas statute. See, e.g., INS v. St. Cyr, 533 U.S. 289,

301 (2001) (“[A]t the absolute minimum, the Suspension Clause protects the writ as it existed in 1789.”);

see also Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93-94

(1807) (Marshall, C.J.) (“[F]or the meaning of the

term habeas corpus, resort may unquestionably be

had to the common law”).

In this case, common law history from England

and the United States shows that the Ninth Circuit

was correct to conclude that habeas corpus is available to Respondent, a noncitizen, to test the lawfulness

of his expedited removal order and detention shortly

after physically entering the United States. The writ

“as it existed in 1789” was available in such circumstances and ensured searching review to prevent illegal restraints on liberty.

Disregarding this history, the government primarily contends that there is no evidence of the use of the

writ to obtain anything other than “relief” from “detention as such,” and Respondent’s petition thus “falls

well outside the historical core of habeas corpus” protected by the Suspension Clause. Pet’rs’ Br. 18. This

argument, however, rests on a fundamentally flawed

reading of the historical record.

The judges who created the common law writ understood that its historic function was to ensure that

those acting in the King’s name did not abuse their

power. Put differently, the writ concerned the actions

of the detainer rather than the status of the detainee.

3

Consistent with this purpose, seventeenth and eighteenth century judges used the writ to review the actions of an evolving array of public and private actors

who imposed various restraints on liberty. Indeed,

amici know of no case before 1789 declining to review

a petition on the ground that an alleged restraint on

liberty was beyond the scope of habeas review. In

light of this history, the request of an asylum seeker,

such as Respondent, for review of an official order

sending him to a country where he faces a credible

fear of physical injury is well within the “core of habeas.”

No other aspect of Respondent’s petition or the

expedited removal process calls into question this conclusion. For instance, while the government and its

amici emphasize that Respondent has limited ties to

the United States, Pet’rs’ Br. 23-27; Brief for Criminal

Justice Legal Foundation as Amicus Curiae (“CJLF

Br.”) 17, the historical record demonstrates that the

availability of the writ did not hinge on the strength

of a petitioner’s connection to England. In fact, in the

one case we know of in which a lawyer argued that

habeas should be limited for foreigners, the argument

was rejected. See DuCastro’s Case, 92 Eng. Rep. 816

(1697); Paul D. Halliday & G. Edward White, The

Suspension Clause: English Text, Imperial Contexts,

and American Implications, 94 Va. L. Rev. 575, 606 n.

76 (2008). Historic examples likewise refute the government’s suggestion that Respondent’s petition is

outside the historic core of the common law writ because petitioner would be “free” if he agreed to return

4

to Sri Lanka or because the relief he seeks is “additional procedures” to determine his status. Pet’rs’ Br.

30; see infra Section I.

The government also asserts that because permitting further judicial review of expedited removal

orders would impede important policy objectives, this

Court should find that the existing expedited removal

process is an adequate habeas substitute even if it

does not provide substantially the same review as habeas does. Pet’rs’ Br. 46-48. Prior to 1789, however,

the common law writ remained available, even when

it would have been expedient to curtail it. Perhaps

more importantly, the government’s argument cannot

be squared with the logic underlying the Suspension

Clause itself. The Framers did not consider the possibility that the writ could be limited absent truly exigent circumstance. Instead, they debated only

whether habeas could ever be suspended. None subscribed to the government’s apparent position that,

absent a formal suspension, judicial review of restraints on liberty can be curtailed for expediency.

ARGUMENT

I. THE COMMON LAW WRIT TESTED THE

LEGALITY OF A WIDE RANGE OF RESTRAINTS ON LIBERTY

The government contends that the decision below

is wrong because common-law judges only used the

writ to grant “relief” from “detention as such.” Pet’rs’

Br. 18. That argument, however, misunderstands the

relevant history.

5

To start, judges in eighteenth century England did

not consider themselves constrained by existing precedent when reviewing habeas petitions; instead they

acted consistent with what they viewed as the writ’s

core function—ensuring that officials acting in the

King’s name did not abuse their power. To that end,

judges in both England and post-colonial America reviewed new restraints on liberty on habeas, and

would have done so here as well. In any event, Respondent’s claim falls well within the “core” of common-law habeas cases, which involved individuals

with limited connections to the realm, detention for

transfer beyond the realm, and relief other than release from detention.

A. The Common Law Writ Was Defined By its

Function: Ensuring That Officials Acting

in the King’s Name Did Not Abuse Their

Power

The government’s position that Respondent’s petition must fall beyond the historical core of habeas corpus unless he can identify precisely analogous precedent is ahistorical. In eighteenth century practice,

the authority of English judges to review habeas petitions was not constrained by past decisions.

Rather than “analogiz[ing] among cases” and “follow[ing] precedents,” the judges who created the

Great Writ understood that it should be used to ensure that officials responsible for discharging the

crown’s power did not abuse that authority. See Paul

D. Halliday, HABEAS CORPUS: FROM ENGLAND TO EMPIRE 160 (2010) (“HABEAS CORPUS”); id. at 78 (“The

broad need to do justice for the subject while protecting the honor of king and court provides the key to

6

habeas corpus . . . and all the prerogative writs.”).

“King’s Bench issued the writ by reasoning not from

precedents, but from the writ’s central premise: that

it exists to empower the justices to examine detention

in all forms.” Id. at 176. Thus, “[i]n any matter involving the liberty of the subject the action of the

Crown or its ministers or officials [wa]s subject to the

supervision and control of . . . judges on habeas corpus.” 11 HALSBURY’S LAWS OF ENGLAND 25 (3d ed.

1955).

As Sir Edward Coke explained, King’s Bench had:

not only jurisdiction to correct errors in judicial

proceeding[s], but other errors and misdemeanors extrajudicial tending to the breach of the

peace, or oppression of the subjects, or raising

of faction . . . or any other manner of misgovernment, so that no wrong or injury, either public

or private, can be done, but that this shall be

reformed or punished.

Sir Edward Coke, THE FOURTH PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 71 (1644); see also

HABEAS CORPUS 87 (“[T]he point of the prerogative

writs” was to “ensur[e] that errors were corrected and

‘justice should be done’ . . . even where law had not

previously provided the means to do so.”); Bourn’s

Case, Cro. Jac. 543, 79 Eng. Rep. 465, 466 (K.B. 1619)

(Chief Justice Montagu: “[T]o dispute [the writ] is not

to dispute the jurisdiction, but the power of the king

and his court, which is not to be disputed.”); Bourn’s

Case, Palmer 55, 81 Eng. Rep. 996 (K.B. 1619) (Justice Dodderidge: “[T]his writ is not at the suit of any

subject, but of the king, and [it] is a point of distributive justice to defend the persons of subjects from

7

wrong and restraint, and no liberty is exempt of the

prerogative of the king.”).3

B. Judges Used The Writ to Ensure that New

Restraints on Liberty Conformed to Law

Consistent with this jurisprudential mindset,

English and American courts in the seventeenth and

eighteenth centuries did not hesitate to deploy the

Great Writ to address new threats to law and liberty.

HABEAS CORPUS 160 (“The court’s work . . . covered

novelties as soon as they appeared, restraining new

practices or jurisdictions that posed greater threats to

law and liberty than did older ones.”); see also Eric M.

Freedman, MAKING HABEAS WORK 128 n.6 (2018)

(“From the late seventeenth century onward, King’s

Bench in England combined the existing forms of the

writ in creative ways to deal with issues raised by private restraints in [various] contexts . . . . As the case[]

of the alleged slave Peter Johnson . . . illustrate[s],

colonial courts followed the same practice. So did

early national ones.”). Indeed, amici are unaware of

3

Subjecthood in the seventeenth and eighteenth centuries

did not correspond to present-day American citizenship: mere

physical presence within territory under de facto English control

could subject a person to the King’s authority. SIR MATTHEW

HALE’S THE PREROGATIVE OF THE KING 56 (The Publications of

the Selden Society, vol. 92) (Yale, D.E.C., ed., London: Bernard

Quaritch, 1975); see also, e.g, Law Report, Times (London), July

2, 1791 at 3 (“[T]he writ of Habeas Corpus was given for the liberty of the subject . . . .”); 1 William Blackstone, 1 COMMENTARIES

ON THE LAWS OF ENGLAND 358 (1765) (discussing Coke and Hale

for proposition that “[l]ocal allegiance is such as is due from an

alien, or stranger born, for so long time as he continues within

the king’s dominion and protection”).

8

any case before 1789 holding that courts lacked jurisdiction to assess the legality of a category of restraint

on individual liberty.

1. Between 1688 and 1815, for instance, the Royal

Navy impressed, that is, forcibly enlisted, approximately 250,000 sailors into naval service. Denver

Brunsman, THE EVIL NECESSITY: BRITISH NAVAL IMPRESSMENT IN THE EIGHTEENTH-CENTURY ATLANTIC

WORLD 6 (2013). Impressed sailors routinely employed the common law writ to challenge the legality

of their compelled service, becoming by the late eighteenth century the largest constituency petitioning for

the writ, often filing their applications for the writ

while on shore leave. HABEAS CORPUS 32-33, 115; see

also Brunsman, supra, at 194.

English judges also used habeas to review the detention of enslaved people. In a widely celebrated

case, Somerset v. Stewart, 20 Howell’s State Trials 1,

79-82 (K.B. 1772), an African slave purchased in Virginia and detained on English soil pending voyage to

Jamaica was discharged on habeas after issuance of

the writ. For present purposes, the most important

aspect of Somerset’s case was “the fact of the writ’s

issuance.” HABEAS CORPUS 176. “King’s Bench issued the writ by reasoning not from precedents, but

from the writ’s central premise: that it exists to empower the justices to examine detention in all

forms.” Id. While the specific circumstances of Somerset were unusual, the way the writ worked was

not—it “comported with the ways in which habeas decisions had been made and explained for centuries.”

Id. at 174; see James Oldham, New Light on Mansfield and Slavery, 27 J. British Studies 45, 46 (1988);

9

see also R. v. Stapylton (K.B. 1771) (habeas used to

retrieve a slave before he set sail for Jamaica); James

Oldham, THE MANSFIELD MANUSCRIPTS AND THE

GROWTH OF ENGLISH LAW IN THE EIGHTEENTH CENTURY, 1225-28, 1242-43 (1992); Case of the Hottentot

Venus 104 Eng. Rep. 344, 344-45 (K.B. 1810) (court

examined whether a “native of South Africa,” Saartje

Baartman, was confined against her will).

Moreover, courts used habeas to review the actions

of a wide range of different authorities. For example,

the Great Writ was used to review actions by inferior

courts of record, as well as commissions and tribunals

which affected the liberty of the subject. Thus, actions

by the London Court of Sessions, bankruptcy commissioners, the College of Physicians in malpractice jurisdiction over doctors, the decisions of justices of the

peace, and of the Sewers Commission sitting as a

court of record were all subject to habeas review. 4

Throughout the English Civil War, Parliament also

created a number of new authorities—from a national

4

See Bushell’s Case, 124 Eng. Rep. 1006, 1016 (C.P. 1670)

(habeas corpus granted to discharge a juror who had been committed for contempt by London Court of Sessions for voting to

acquit); Hollingshead’s Case, 91 Eng. Rep. 307 (K.B. 1702) (prisoner discharged; bankruptcy commission failed to adhere to statute); Dr. Groenvelt’s Case, 91 Eng. Rep. 1038 (K.B. 1702) (holding that statute empowering College of Physicians to fine did not

abrogate royal pardon power); Gardener’s Case, Cro. Eliz. 821,

78 Eng. Rep. 1438 (K.B. 1600) (review of question of whether

justice of the peace properly interpreted firearms statute); Hetley

v. Boyer and Mildmay, 79 Eng. Rep. 287 (K.B. 1613) (discharging

individual imprisoned after challenging taxations system used

by the Commission to finance project; holding such taxation system invalid).

10

Presbyterian church to a “bewildering array of committees created to manage the war by building militias, procuring supplies, and collecting funds.” HABEAS CORPUS 163. Habeas corpus was readily available to test the legality of their actions as well. Id.

Finally, English judges extended habeas to resolve

domestic disputes. In R. v. Delaval, 97 Eng. Rep. 913

(K.B. 1763), a habeas writ supported by affidavits

from parents prompted judicial inquiry into the status of their daughter, who had been apprenticed at

age fifteen to a music master before being handedover to the respondent to serve as his mistress. Lord

Mansfield approved the use of the writ in these circumstances and mentioned three other cases “of writs

of habeas corpus directed to private persons, ‘To bring

up infants.’” Id. at 914.

To give another example: In R. v. Turlington, 97

Eng. Rep. 741 (K.B. 1761), the writ was issued to the

keeper of a private “mad-house” to bring into court a

woman who had been placed in the asylum by her

husband. See also R. v. Lee, 83 Eng. Rep. 482 (K.B.

1676) (reviewing husband’s treatment of wife, but refusing relief); Lister’s Case, 88 Eng. Rep. 17, 17 (K.B.

1721) (ordering release of wife whose husband “[took]

her violently into his custody”); Law Report, Times

(London), Jan. 30, 1786, at 3 (Lord Mansfield observing that a father was entitled to habeas corpus to recover his children when improperly withheld).

2. Like their English counterparts, early American

courts employed the writ to review a broad range of

restraints on liberty. For instance, in 1748, Peter

Johnson of Portsmouth, New Hampshire sought a

writ of habeas corpus on the ground that he was

11

wrongfully “imprisoned for refusing to serve as a

slave.” E. Freedman, MAKING HABEAS WORK, supra,

at 14 (citing Provincial Case File No. 22344, New

Hampshire State Archives 5 ). Johnson was imprisoned when his alleged master complained to a local

Justice of the Peace that Johnson “refuseth to labour

and is stubborn and rebellious.” Id. at 124 n.11. The

Justice of the Peace subsequently issued an order directing the sheriff to confine Johnson “until [he] shall

behave himself.” Id. In response to Johnson’s petition, the Superior Court ordered his alleged owner to

appear, and the issue of Johnson’s status was put to a

jury. Id. at 14. Ultimately, Johnson was freed, and

the court ordered him released from both the physical

custody of the sheriff and the legal custody of his alleged owner. See id. at 124 n.13.

In another example, George Bigby applied for habeas on behalf of his eighteen-year-old son Zedebee,

who had enlisted in the army without his consent.

United States v. Anderson, 24 F. Cas. 813, 813 (C.C.D.

Tenn. 1812). The court rejected the army’s argument

that judges could not interfere with war department

enlistment procedures and held that enlistment of an

underage soldier absent parental consent was a form

of illegal confinement. Id. at 14. In support of its

holding, the court cited its “power to issue writs of habeas corpus in all cases where citizens are illegally

confined” and explained that “Congress could not pass

a law vesting the war department with a power which

would in effect suspend the writ of habeas corpus.” Id.

5 https://tinyurl.com/t52p7fr.

12

*

*

*

Together, these cases demonstrate that the writ of

habeas corpus was historically available to examine

restraints on liberty in a wide variety of forms. No

restraints, even novel ones, were beyond the oversight

of English and early American judges.

C. The Common Law Writ Would Have Extended to Persons Such as Respondent

In light of the function of the Great Writ prior to

1789 and the principles that guided its application, it

is clear that habeas would have reached the restraint

on liberty at issue in this case. To the extent that

analogies to historical cases are relevant, they show

that Respondent’s claims and the relief he seeks lie

within the bounds of the common law writ. The writ

applied even when, as here, a petitioner was foreign

and had limited ties to the Crown or was detained for

transfer beyond the realm. The historical record also

demonstrates that the relief available on habeas was

not limited to release from detention.

1. The Common Law Writ Extended to

Foreigners With Limited Ties to the

Crown

Respondent’s challenge to his removal order is not

beyond the core of the historic common law writ

merely because he has limited ties to the United

States. As this Court has recognized, the purpose of

the common law writ was to vindicate the rights of

“the King and his courts” rather than individuals.

Boumediene v. Bush, 553 U.S. 723, 740 (2008). In

other words, the historical core of habeas corpus was

chiefly concerned with the status of the detainer or

13

jailor, rather than the status of the detainee. HABEAS

CORPUS 41-45; 184-87. Given its purpose, it is unsurprising that the common law of England prior to 1789

did not condition the availability of the writ on

whether a petitioner was a subject or the length of

time he had been in the realm. Id. at 207-08. Indeed,

because the status of the detainee was generally irrelevant, “in the many cases of foreigners using habeas

corpus” prior to 1789, “the issue of their foreignness

[was] almost never discussed, much less used to bar

review of detention.” Halliday & White, supra, at 60405.

In fact, status as a foreign national was often the

very reason for which a petitioner sought the writ in

impressment cases. In one example from 1769, the

Admiralty solicitor described dispatching agents to

King’s Bench Chief Justice Mansfield’s chambers to

discover the grounds upon which a writ of habeas corpus had been issued for the production of two impressed sailors. Having ascertained from the affidavits that the men were claiming to be Swedish nationals, and thus exempt from service in the Royal Navy,

the solicitor recommended that they be discharged

without contesting the application. K. Costello, Habeas Corpus and Military and Naval Impressment,

1756-1816, 29 J. Legal Hist. 215, 239 n. 145 (2008)

(citing S. Seddon to J. Clevland, 14 Dec. 1759, PRO

ADM 1/3677).6

See also Hans Anderson, et al., The National Archives,

London (Kew) [PRO] ADM1/3680, folio 478 (K.B. 1778) (ordering

two Danes impressed into the Royal Navy released on habeas

corpus); Jacob Lilliquest, et al.’s Case, PRO, ADM1/3678, folios

6

14

Although one amicus brief contends that “aliens

with weak[] connections were turned away by the

courts,” CJLF Br. 11 (citing R. v. Schiever, 97 Eng.

Rep. 551 (K.B. 1759) and The Case of Three Spanish

Sailors, 96 Eng. Rep. 775 (C.P. 1779)), nothing in the

case reports it cites supports that assertion.

In Schiever, a Swedish national challenged his detention as a prisoner of war after he was captured

aboard a French privateer during a war between England and France. 97 Eng. Rep. at 551. Significantly,

in an affidavit supporting his petition, Schiever conceded that he was a prisoner of war. King’s Bench

denied the writ on that basis, because, at that time,

prisoners of war could be released only through prisoner exchanges. HABEAS CORPUS 169. The case report says nothing about the petitioner’s “connections”

(or lack of connection) to England.

Similarly, in The Case of Three Spanish Sailors,

three sailors were seized from a Spanish privateer

and induced to work on a merchant vessel based on a

promise of wages and release upon arrival in England. Once in England, however, the ship’s captain

turned the sailors over to an English warship as prisoners of war. On habeas, the court found that the captain had engaged in misconduct but nevertheless denied the petitioners’ relief based on a concession in

their own affidavits that they were “prisoners of war.”

96 Eng. Rep. at 776.

123, 137 (K.B. 1759) (holding an English ship captain in contempt for ignoring previous court order to release a foreigner impressed upon his ship); Booy Booysen and John Jurgenson

Brandt, PRO, ADM1/3677, folio 262 (K.B. 1758) (granting habeas release to two Danes impressed on the Princess Royal).

15

CJLF’s argument that “the petitioner[s]” in these

cases were “not . . . entitled to habeas corpus is at best

ambiguous and at worst misleading.” E. Freedman,

MAKING HABEAS WORK, supra, at 10. Though denied

habeas relief on the merits, the petitioners in these

cases obtained judicial review of the facts and law underlying their detention despite their limited connection to the Crown.7 In fact, we are aware of only one

report in which counsel explicitly argued that foreigners might not have the same access to habeas corpus

as other subjects—and King’s Bench rejected that

view. DuCastro’s Case, 92 Eng. Rep. 816 (1697); Halliday & White, supra, at 606 n. 76.

2. The Writ Applied to Foreign Nationals

Detained For Transfer

We are aware of no historical cases that support

the government’s view that the common law writ

would not have extended to aliens detained for deportation. To the extent that the historical record directly addresses this anachronistic question, it confirms that habeas would have reached the actions of

7

CJLF also points to Somerset and In Case of the Hottentot Venus as examples of aliens who were “part of the population”

and therefore entitled to greater privileges. See CJLF Br. 10

(citing Yamataya v. Fisher, 189 U. S. 86 (1903)). The case reports, however, contain absolutely no evidence that the status of

the detained person was a prelude to the use of habeas corpus in

either of these cases. See Somerset, 20 Howell’s State Trials at

79-82; Hottentot Venus, 104 Eng. Rep. at 344-45; Oldham, New

Light on Mansfield and Slavery, supra, at 56-58 (examining multiple reports of the Somerset case). CJLF also contends that

King’s Bench “regarded [Baartman] as a resident.” CJLF Br. 10.

Again, the report shows nothing of the kind. See Hottentot Venus, 104 Eng. Rep. at 344-45.

16

government officials responsible for this restraint on

liberty. See, e.g., Somerset, 20 Howell’s State Trials

at 79 (considering whether “the owner had a right to

detain the slave, for the sending of him over to be sold

in Jamaica”) (emphasis added); Murray’s Case, TNA

(“The National Archives, London”), KB 145/17/29 (4

July 1677) (writ issued for Murray, a Scot, after he

was imprisoned in order to be sent to Scotland and

tried there for several crimes). In addition to the general principles discussed above, two examples are illustrative.

1. In 1792 “the flow of French emigrants” fleeing

the French Revolution “reached its climax” and precipitated a conversation in England regarding “what

measures could be taken to control the influx of foreigners.” See J.R. Dinwiddy, The Use of the Crown’s

Power of Deportation Under the Aliens Acts, 17931826, 41 Hist. Res. 193, 193 (1968). Ultimately, Parliament responded by enacting the Aliens Act of 1793,

which “imposed new burdens on aliens.” HABEAS CORPUS 255. Among its many innovations, the Aliens Act

suspended habeas for those who violated its provisions, in some cases for deportation.8

This aspect of the Act was controversial. Proponents maintained that suspension of the writ was

“necessary” for “the safety of the state.” Id. at 256.

Others condemned the Act precisely because it would

interfere with habeas. Id. Leaders on both side of

8

To suspend habeas, the Act uses the same language that

appears in other suspension statutes from this period: Rather

than expressly suspending the writ, the Act expands specific officials’ authority to detain “without bail or mainprise.” HABEAS

CORPUS 248, 259.

17

this debate, however, appear to have shared the common assumption that absent suspension, the writ

would have been available to foreign nationals detained pursuant to its provisions, even if they ultimately would have been deported.

2. In another instructive episode, English forces

sought to reduce resistance to their control in Nova

Scotia by relocating upwards of 5,000 Acadians to

other English colonies. Governor James Glen of

South Carolina considered expelling Acadians who

arrived there, but conferred with the colony’s Attorney General and Chief Justice who expressed concern

that should he execute this unlawful plan he would be

“subject . . . to all the Pains & Penalties in the Habeas

corpus Act.” See James Oldham & Michael Wishnie,

The Historical Scope of Habeas Corpus and INS v. St.

Cyr, 16 Geo. Immigr. L.J. 485, 498 (2002).

3. Relief Was Not Limited to Release

from Detention

Finally, the historical record reveals that relief under the common law writ was not limited to release

from detention; rather, the writ empowered judges to

provide equitable relief and do justice, even in the absence of existing rules or remedies. Indeed, the text

of the common law writ did not instruct the recipient

to produce a “body” so that he could be released but

instead so that he could “undergo and receive whatever [the] court should then and there happen to order

concerning him in this behalf.” HABEAS CORPUS 39.

This language reflected the historic understanding

that the relief available on habeas was “equitable in

character” if not in name. HABEAS CORPUS 87. Thus,

though the writ “grew up in the chief common law

18

court,” judges understood it could be used to “do justice even in the absence of previously existing rules or

remedies.” Id. Consistent with the writ’s equitable

nature, common law courts displayed creativity in

crafting remedies appropriate to the facts of each

case.

John Harper, who had a “great reputation” as a

large man who danced well was put in Westminster’s

house of corrections in 1733 as “a common player of

interludes.” HABEAS CORPUS 116-17. The return did

not make clear whether the justice of the peace who

jailed Harper had followed the statute that defined

actors as “vagabonds.” Id. at 117. The court therefore

discharged Harper on condition that he return for further debate regarding whether he was a “vagabond”

under the act. Id. at 117, n. 92. Other examples of

court orders that did more than direct the release of a

petitioner abound. See, e.g., R. v. Lee, 83 Eng. Rep.

482 (K.B. 1676) (refusing to discharge wife who filed

habeas petition claiming mistreatment by her husband but offering to “bind him with sureties” to not

mistreat her); HABEAS CORPUS 117 n. 95 (Henry

Brearley, a local leader, was released by Queen’s

Bench in 1600 on the condition that he apologize); HABEAS CORPUS 119 n.113 (Richard Alborough used habeas corpus to escape hanging but only on condition

of

transportation);

Edwards’s

Case,

TNA,

KB29/251/67d and KB21/4/13 (K.B. 1609) (King’s

Bench ordered bail of Hugh Edwards, on condition

that he treat his wife well and support her).

19

II. HABEAS REVIEW ENCOMPASSED THE APPLICATION OF LAW TO FACTS

The government also suggests that the relief Respondent seeks falls outside the historical core of habeas because he seeks review of more than purely legal questions. Pet’rs’ Br. 45. That is incorrect. The

historical record refutes the idea that only pure legal

questions—or only the narrow questions over which

the statute at issue here permits review—would be

reviewable.

For instance, in Thomas Miller’s Case, 96 Eng.

Rep. 518, 2 Black. W. 881 (C.P. 1773), a prisoner, detained pursuant to a law that required him to answer

the questions of a bankruptcy commissioner, argued

that he should be discharged because he had no

memory of the events at issue and was unable to answer the commissioner’s questions. The Court of

Common Pleas did not limit its analysis to the legal

rule at issue, however, but applied the law to the facts

of that case and discharged the prisoner, reasoning

that where a prisoner “really has no recollection, tis

impossible to make any other answer, and we must

not compel men to impossibilities.” Id. at 520.

Similarly, in many impressment cases, judges

acting on habeas made decisions based on sworn affidavits, considering the specific factual contours of the

cases before them. For example, in Good’s Case, 96

Eng. Rep. 137, 1 Black. W. 251 (K.B. 1760), King’s

Bench reviewed an affidavit and held that the relevant law was inapplicable to a ship-carpenter who

“never used to go to sea.” In the case of John Millachip, a liveryman in the city of London, Lord Mansfield remarked that he “often sent a message to the

20

Admiralty where a person has appeared to me from

the Affidavits to be entitled to his discharge on the

writ” and once, upon review of an affidavit, “thought

there was such a possible probable cause” that he

granted the writ “to put the question in a way of litigation.” James Oldham, Some Effects of War on the

Law in Late Eighteenth- and Early Nineteenth Century England, in CHALLENGES TO AUTHORITY AND THE

RECOGNITION OF RIGHTS: FROM MAGNA CARTA TO MODERNITY 142, 162 (Catharine MacMillan & Charlotte

Smith, eds. 2018); see also id. (Mansfield observing

that “it would be extremely hard if there were no summary way for the party to obtain his discharge.”); 9

Law Report, Times (London), May 26, 1808, at 4 (in

case of Nathaniel Young, citing Millachip case and reviewing affidavit to determine whether to grant writ).

Another example is the grant of habeas relief to

John Golding in 1692. Detained from a vessel flying

French colors as a prisoner of war, the native of Dublin was released based on the court’s determination

that the legal term “prisoner of war” did not apply to

him as an English subject. See HABEAS CORPUS 170.

Courts also looked behind affidavits in habeas

judgments. See, e.g., Case of the Hottentot Venus, 104

9

These quoted remarks from Lord Mansfield in Rex v.

Kirke were transcribed from a manuscript found in notebook 6A,

Crown Cases 1794–1797, compiled by and for Sir Soulden Lawrence, puisne justice of the Court of King’s Bench, MS 20, Middle

Temple Library, London, pp. 39-48. Rex v. Kirke was also reported in the Morning Chronicle on 18 June 1777. See Oldham,

Some Effects of War on the Law in Late Eighteenth- and Early

Nineteenth Century England, supra, at 169 n.101.

21

Eng. Rep. at 344, discussed supra Sections I.B, I.C.1;

R. v. Turlington, 97 Eng. Rep. 741 (K.B. 1761) (ordering inquiry into the sanity of the petitioner committed

to a “private madhouse” and discharging her based on

finding her “free from the least appearance of insanity”).

Following independence and adoption of the Constitution, federal courts in the United States embraced the English tradition of reviewing the application of law to facts on habeas. For instance, Chief Justice John Marshall, riding circuit, ordered the release

of one prisoner detained under a statute concerning

enforcement of debts to the Treasury. Marshall examined the facts of that case and held that the prisoner was “not one of those persons on whom the law

was designed to operate” because he was serving only

in an acting capacity as a Navy ship’s purser. Ex

Parte Randolph, 20 F. Cas. 242, 254-55 (C.C. Va.

1833) (No. 11,558).

The case of Ex parte Bollman, 8 U.S. (4 Cranch)

75 (1807) also itself features the application of law to

facts. There, Marshall analyzed whether there was

sufficient evidence from the affidavits to justify the

charge of treason, looking into the “particular words”

used by one petitioner and what “has been said” by

the other. Id. at 135. Finding no evidence to match

the elements for treason, Marshall granted the writ.

Id. at 136.

These and many other historical examples confirm

that at common law in England and in post-colonial

America, courts regularly and routinely applied law

to facts when reviewing habeas petitions.

22

III. THE COMMON LAW WRIT REMAINED

AVAILABLE IN TIMES OF CRISIS

The government contends that the expedited-removal process is an adequate substitute for habeas in

light of the “current crisis at the southwest border.”

Pet’rs’ Br. 48. But that position is inconsistent with

both the history of the writ in England and the Framers’ understandings. It was well recognized in England and in the Founding era that the writ remained

available even when it would have been more convenient or expedient to dispense with it. The policy concerns the government identifies cannot, consistent

with history, justify restrictions on the availability of

the writ in the expedited-removal statute.

A. The Common Law Writ Was Available

Even When Judicial Review Might Interfere with Important Policy Objectives

The government’s position finds no support in the

historical use of the writ. At common law, unless Parliament expressly suspended the writ, it remained

available, even in times of crisis or when judicial review might undermine the Crown’s policy objectives.

For instance, following the “Glorious Revolution”

of 1688-89, William III, who with his wife and consort

Mary, James II’s daughter, had replaced his fatherin-law on the English throne, faced crises on two

fronts as he fought for his throne in Ireland and attempted to forestall an imminent invasion by France.

HABEAS CORPUS 134-35. Nevertheless, except when

Parliament suspended the writ by statute, habeas remained available. Indeed, between the start of Michaelmas term 1689 and the end of 1690, King’s Bench

23

reviewed the fate of 251 prisoners: more than in any

other period of equal length. Id. Most (147) had been

jailed for wrongs against the state such as treason,

seditious libel, or treasonable practices. Id. Despite

the severity of their charges, King’s Bench bailed or

discharged 80 percent of those prisoners. Id.10

Similarly, during the Seven Years’ War between

France and England, Admiralty solicitor Samuel Seddon warned Lord Mansfield that allowing impressed

sailors to seek habeas relief would create serious difficulties in manning the king’s ships. HABEAS CORPUS

115 (discussing letter from Seddon). That risk, however, did not justify the writ’s restriction. The writ

remained available, and in the last four decades of the

eighteenth century, sailors were involved in more

than a thousand habeas cases. HABEAS CORPUS 8485; see also Brunsman, supra, at 192-93.11

Darnel’s Case, 3 How. St. Tr. 1 (K.B. 1627), is a further

example of the writ’s vitality even in times of crisis. There, five

knights were imprisoned for failing to pay loans Charles I imposed to raise funds for the Thirty Years’ War. Charles “regarded the situation he and his allies faced as an emergency,”

and yet King’s Bench still permitted the knights to use writs of

habeas corpus. Mark Kishlansky, Tyranny Denied: Charles I,

Attorney General Heath, and the Five Knights’ Case, 42 Hist. J.

53, 59-60 (1999). When King’s Bench delayed judgment on the

return, it provoked widespread outrage, leading Charles to release the knights and Parliament to enact the Petition of Right,

which specifically forbade the practice of detaining prisoners by

his Majesty’s special command without a specific cause of legal

detention. See Eric M. Freedman, Hamdi and the Case of the

Five Knights, Legal Times (Feb. 3, 2003).

10

11

The sheer number of habeas petitions from impressed

sailors held all over the Empire led an officer for the Impress

Service of Ireland, Archibald Hamilton, to compile the case law

24

In another example, Lord Ellenborough sanctioned a “fast-sailing cutter to bring back” a man who

sought a writ to challenge his impressment aboard a

warship that had already sailed to Cadiz, Spain “on

service of importance.” Law Report, Times (London),

Jan. 26, 1811 at 3. The Times explained that Lord

Ellenborough was hesitant to “impede his Majesty’s

service,” but he nonetheless issued the writ and endorsed dispatching the ship to track down the petitioner because the Lordship was “very strongly obnoxious to sending abroad impressed men pending an application by them to the Court . . . .” Id

The numerous habeas cases involving prisoners

of war further demonstrate that the Justices of King’s

Bench did not believe that the Crown’s policy concerns—even those implicating national security—curtailed their authority.

For example, in 1690, Abraham Fuller sought the

writ when he was detained after landing in Chester,

the usual point of entry from Ireland, where many

had taken up arms against the King. The writ returned with no charge, stating only that Fuller was

being held “as a prisoner of war.” King’s Bench discharged Fuller, even though (and perhaps because)

the warrant for his arrest alleged “treasonable practices,” which was inconsistent with the “prisoner of

war” label in the return. HABEAS CORPUS 169-71 (citing Fuller’s Case, TNA, KB11/14 (K.B. 23 Jan. 1690);

into a “Treatise on Impressing” in 1806. Reproduced in 8 Irish

Jurist (N.S.) 117 (1973). One common ground identified in the

Treatise for challenging an impressment was that a sailor was

not the “proper subject for that practice.” Id. at 131 (emphasis in

the original).

25

see also id. (citing Cumberford’s Case, TNA, KB16/1/6

(K.B. 23 Jan. 1697) (discussing case of Garret Cumberford, where no charge on return resulted in bailment)).

The same year, Peter Depremont and three other

French merchants were trapped in England when

war began with the French. They were captured and

sought writs of habeas corpus. The return to their

writs explained that Depremont and the other merchants were Frenchmen, to be held “durante bello,”

and that a dozen English merchants were being held

in similar circumstances in France. Based on this information, the petitioners were remanded to await exchange for their English counterparts. While King’s

Bench disagreed with the merits of Depremont’s petition, the court did not refrain from exercising jurisdiction to confirm his status—despite the ongoing military conflict. HABEAS CORPUS 171 (citing Depremont’s

Case, TNA, KB11/14 (K.B. 7 Feb. 1690)).

The government’s suggestion that habeas corpus

can be restricted based solely on the executive’s policy

concerns, even in times of crisis, is inconsistent with

the writ’s common-law history. As Blackstone noted,

“the parliament only … can authorize the crown, by

suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing.” 1 William Blackstone,

COMMENTARIES ON THE LAWS OF ENGLAND 136 (21st

ed. 1844) (emphasis added). Absent a suspension, the

writ known to the Founders was far more durable

than the government contends.

26

B. The Framers Understood that Habeas

Would Remain Available Regardless of

Expediency

The government’s position is similarly incompatible with the Framers’ understanding of the writ and

the logic underlying the Suspension Clause. In drafting the Suspension Clause, the Framers made clear

that only the most exigent circumstances—not convenience or expediency—could justify formal suspension. And importantly, there is no historical evidence

suggesting that the Framers envisioned any restrictions on the availability of the writ—let alone

ones based on convenience and expediency—absent

such a formal suspension

In drafting the Suspension Clause, the Framers

rejected the idea of a writ that could be suspended

based only on policy concerns related to expediency or

convenience. During the Revolutionary War, Parliament had offered one such convenience-based rationale in support of the Suspension Act of 1777,

which formally suspended the writ as applied to

Americans. Until that point, formal suspensions had

been justified principally by “necessity”—a rationale

that “operated when, in Parliament’s estimation, the

subjects’ liberties could only be protected by temporary, carefully contained limits on a writ that had

come to be associated with those liberties.” Halliday

& White, supra, at 624. The 1777 Act “marked a significant retreat” from that traditional principle, justifying the suspension on the ground that “it may be

inconvenient in many such cases [of accused American traitors] to proceed forthwith to the trial of such

27

criminals, and at the same time of evil example to suffer them to go at large.” Id. at 645 (alteration in original) (quoting 1777 Act, 17 Geo. 3, c. 9 (Feb. 20, 1777

to Jan. 1, 1778)).

The Framers never even considered adopting the

notion, embodied in the Suspension Act of 1777, that

the writ could be suspended based solely on concerns

for convenience or expediency. Instead, to the extent

there was any debate at the Constitutional Convention concerning the Suspension Clause, it was over

whether the writ could ever be suspended. 12 Of

course, the Framers ultimately agreed that the writ

could be suspended only “when in Cases of Rebellion

or Invasion the public Safety may require it.” U.S.

Const. art. I, § 9, cl. 2. We are aware of, and the government has cited, no historical evidence suggesting

that the Framers envisioned any restrictions on the

availability of the writ—let alone ones based on convenience or expediency—in the absence of a formal

suspension.

That same understanding is reflected in early judicial opinions. For instance, in Lockington’s Case,

12

A sizable minority of the Framers believed that the writ

should never be suspended. Eric M. Freedman, HABEAS CORPUS:

RETHINKING THE GREAT WRIT OF LIBERTY 12-13 (2001); see also

2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed. rev. ed. 1966) 438 (John Rutledge of South Carolina argued that the writ was inviolable and could never be suspended);

Luther Martin, Genuine Information VIII (Jan. 22, 1788), reprinted in 15 DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION 434 (John P. Kaminski & Gaspare J. Saldino

eds., 1984) (Luther Martin worried that if the federal government could suspend the writ, it might become an “engine of oppression” during times of supposed “act[s] of rebellion.”).

28

Bright. (N.P.) 269 (Pa. 1813), the petitioner, an alien

who had resided in the United States prior to the War

of 1812, was taken into custody after the war began.

When he sought a writ of habeas corpus from the

Pennsylvania Supreme Court, the district attorney

challenged the judges’ authority to issue the writ.13

The judges rejected that challenge, explaining that to

destroy their jurisdiction in cases of habeas corpus, “it

is necessary to show, not that the United States have

given them jurisdiction; but that congress possess,

and have exercised, the power of taking away that jurisdiction”—i.e., that Congress formally suspended

the writ. Id. at 273; see also Ex parte D’Olivera, 7 F.

Cas. 853, 854 (C. C. D. Mass. 1813) (Story, J., on circuit) (granting writ for Portuguese sailors arrested as

alleged deserters during War of 1812, finding that

their confinement was not authorized by federal statute because the sailors were engaged by a foreign vessel).

In short, the history of the Suspension Clause and

of early post-colonial habeas practice demonstrates a

strong continuity with the tradition established at

common law in England: that, contrary to the government’s position here, the availability of habeas could

not be restricted based solely on expedience, convenience, or other policy concerns of the executive.

13

Although the petition was brought under state law, it

nonetheless demonstrates “the court’s general understanding of

habeas corpus law.” See Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev.

961, 993 (1998).

29

CONCLUSION

The Court should uphold the Ninth Circuit’s decision.

Respectfully submitted,

MICHAEL J. WISHNIE

WILLIAM O. DOUGLAS

CLINICAL PROFESSOR OF

LAW

YALE LAW SCHOOL†

127 Wall Street

New Haven, CT 06511

(203) 436-4780

michael.wishnie@yale.edu

ANTON METLITSKY

(Counsel of Record)

JENNIFER B. SOKOLER

DAVID COHEN

ANDREA SAVDIE

ETHAN M. SCAPELLATI

O’MELVENY & MYERS LLP

Times Square Tower

7 Times Square

New York, N.Y. 10036

(212) 326-2000

ametlitsky@omm.com

ANNA O. MOHAN*

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20036

(202) 383-5300

*Admitted only in Virginia; supervised

by principals of the firm

January 22, 2020

†This brief does not purport to state the view of Yale

Law School, if any.

APPENDIX

1a

APPENDIX: LIST OF AMICI CURIAE1

Lauren Benton

Nelson O. Tyrone, Jr. Professor of History

Professor of Law

Vanderbilt University

2301 Vanderbilt Place

Nashville, TN 37235

Barbara Aronstein Black

George Welwood Murray Professor Emerita of Legal

History; Dean Emerita

Columbia Law School

435 West 116th Street

New York, NY 10027

Dr. Paul Brand

Emeritus Fellow of the College and

(Emeritus) Professor of English Legal History in the

University of Oxford

All Souls College

Oxford OX1 3BD

United Kingdom

Kevin Costello

Associate Professor

Sutherland School of Law

University College Dublin

Belfield Dublin 4

Ireland

1 Institutional affiliations are provided for identification pur-

poses only. The views expressed in this brief do not necessarily

reflect the views of the institutions with which amici are affiliated.

2a

Christine Desan

Professor of Law

Harvard Law School

1563 Massachusetts Avenue

Cambridge, MA 02138

Lisa Ford

Professor of History

University of New South Wales

349 Morven Brown

Kensington NSW 2052

Australia

Eric M. Freedman

Siggi B. Wilzig Distinguished Professor of

Constitutional Rights

Maurice A. Deane School of Law

Hofstra University

121 Hofstra University

Hempstead, NY 11549

Robert W. Gordon

Professor of Law

Stanford Law School

559 Nathan Abbott Way

Stanford, CA 94305

Thomas A. Green

John Philip Dawson Collegiate

Professor Emeritus of Law

University of Michigan Law School

625 South State Street

Ann Arbor, MI 48109

3a

Paul D. Halliday

Julian Bishko Professor of History & Professor of

Law

Department of History

University of Virginia

Charlottesville, VA 22904

Hendrik A. Hartog

Class of 1921 Bicentennial Professor of the History

of American Law & Liberty, Emeritus

Princeton University

214 Dickinson Hall

Princeton, NJ 08544

Elizabeth Papp Kamali

Assistant Professor of Law

Harvard Law School

1563 Massachusetts Avenue

Cambridge, MA 02138

Stanley N. Katz

Lecturer with rank of Professor, ret., Woodrow

Wilson School of Public and International Affairs

Princeton University

341 Wallace Hall

Princeton, NJ 08544

David Lieberman

James W. and Isabel Coffroth Professor of

Jurisprudence

U.C. Berkeley School of Law

225 Bancroft Way

Berkeley, CA 94720

4a

Michael Lobban

Professor of Legal History

London School of Economics

Houghton Street, London

WC2A 2AE

United Kingdom

Bernadette Meyler

Carl and Sheila Spaeth Professor of Law

Stanford Law School

559 Nathan Abbot Way

Stanford, CA 94305

Eben Moglen

Professor of Law

Columbia Law School

435 West 116th Street

New York, NY 10027

Hannah Weiss Muller

Assistant Professor of History

Brandeis University

415 South Street

Waltham, MA 02453

James Oldham

St. Thomas More Professor of Law and Legal History

Georgetown Law

600 New Jersey Ave., NW

Washington, DC 20001

5a

Wilfrid Prest

Professor Emeritus of History and of Law

Adelaide Law School

University of Adelaide

South Australia, 5005

Australia

Jonathan Rose

Professor of Law & Willard H. Pedrick Distinguished

Research Scholar Emeritus

Arizona State University College of Law

609 E. Carter Drive

Tempe, AZ 85282

David J. Seipp

Professor of Law

Boston University School of Law

765 Commonwealth Avenue

Boston, MA 02215

John Fabian Witt

Allen H. Duffy Class of 1960 Professor of Law

Yale Law School

127 Wall Street

New Haven, CT 06511