The Right Coast

June 30, 2004
Overturning Rasul
By Mike Rappaport

I have been working my way slowly through the Supreme Court’s detention cases. In this post I will discuss Rasul, which involves the rights of aliens to access to United States Courts. In short, I think that the Court’s decision was mistaken, largely for the reasons stated in Justice Scalia’s dissent, but that the decision is less likely to be dangerous than it at first appears.

In Rasul, the Supreme Court held that aliens from Australia and Kuwait, who were captured in Afghanistan and held in Guantanamo, were entitled to access to the United States federal courts in order to contest their confinement. Exactly what procedures they will be entitled to is not clear. Six members of the Court believed that the aliens were entitled to these rights, whereas Scalia, Thomas, and Rehnquist thought otherwise.

Rasul seems to me to be more important than the Hamdi case (which involves citizens), if only because there are likely to be far more aliens than U.S. citizens who are charged with fighting against the United States. Most importantly, Rasul may allow persons that the United States captures on foreign battlefields to seek review of their cases in federal court. As Eugene Volokh has noted, this may allow war by litigation, with the captives burdening our military and courts.

What has not been widely noted, however, is that the political branches may be able to overturn Rasul. The Court’s decision was expressly based on a habeas corpus statute rather than the constitutional right to habeas. Thus, there is nothing in the Rasul decision that would prevent Congress from modifying the statute and eliminating the problem. Congress could redraft the statute to make clear that aliens captured outside of the United States are not entitled to habeas. Or Congress could simply cut back on the Supreme Court’s reading of the statute, reducing or limiting the right to a hearing in various circumstances.

Of course, it is possible that the Court might review such a statute and find it unconstitutional under the Habeas Corpus Clause, but this by no means clear. In fact, if Congress and the President were to agree to limit habeas for aliens outside of the United States, I think it is extremely unlikely that O’Connor and Kennedy would hold that statute unconstitutional, which would result in at least a 5-4 decision in favor of constitutionality.

Thus, in the end, Rasul may be less important and less dangerous than it first seems. Some have noted that the Constitution allows Congress to suspend Habeas Corpus, but they have argued that this is no cure-all because the suspension may only be made under limited circumstances that may not apply. But there are no such restrictions on Congress’s ability to modify the habeas statute (assuming the constitutionality of the modification). Of course, that the political branches can overturn a Supreme Court decision is no justification for that decision. But it does a place a limit on the harm that it can cause.

Update: Upon further reflection, I want to amend my post a little. While the majority opinion, supported by five members of the Court, relied on statutory authority, Justice Kennedy’s concurrence appeared to rely on the Constitution’s Habeas Corpus Clause. Thus, my claim that Justices Kennedy and O’Connor would be likely to uphold a statute modifying the habeas statute needs to be revised. It is possible (although by no means certain) that Justice Kennedy would deem a statutory amendment to be unconstitutional. Yet, it is also possible that the other justices in the majority (in addition to Justice O’Connor) would hold the statute to be constitutional. Thus, my bottom line remains the same as before: Nothing in the Court’s opinion in Rasul precludes amending the habeas statute and it is quite possible that the Court would hold the revised statute to be constitutional.