Archive for the ‘Fifth Amendment’ Category

Victoria Hannan unpacks the many meanings of love – Sydney Morning Herald

Hannan has, she says, long been fascinated by the idea that we are compelled to believe that love has to take certain forms, be it romantic or familial love or simply strong friendships. But things dont always turn out the way we expect, often taking on different shapes, and its then that we often feel we have failed or at least are not very good at it.

"But with this story I wanted to explore an unconventional love story and that the love you find in a friendship can often be longer lasting or more important than romantic love or at least serve a different purpose. They should all complement each other and they can all change and evolve over your life too," she says. "I think theres something quite powerful in understanding that love doesnt have to be one thing."

We initially meet Mina expressing love in what Hannan calls a very conventional way. "But every so often she is reconsidering what that idea of love is and towards the end she gets real shock news from her mother and everything is completely blown out of the water."

When Mina returns home, she turns to her best friend Kira for support; re-encounters another old friend; and finally learns the secret at the heart of her mothers life.

Hannan had herself been living in London for 10 years and writing copy at an agency and working as a freelance photographer. But for the entire time, she had wondered what would be the nature of the phone call that would bring her dashing back to Australia. (In the end it was her fathers diagnosis with Parkinsons.)

One day she went to a karaoke party and one of her friends sang the Beach Boys song Kokomo: "Off the Florida Keys, theres a place called Kokomo / Thats where you want to go to get away from it all/ Bodies in the sand, tropical drink melting in your hand/ Well be falling in love to the rhythm of a steel drum band/ Down in Kokomo."

She was struck by the lyrics and subsequently discovered that far from a tropical paradise, Kokomo was actually an unprepossessing town in Indiana notable for its now-demolished gas tower, a significant crime rate and a Starbucks outlet destroyed by a tornado a few years ago.

"I was fascinated by this idea that we readily and happily believe things to be truths and often dont challenge them. When those two ideas the push and pull (of leaving and staying) and the challenge of who we think people are and who they actually are came together, Kokomo really started to form in my mind."

And she was intrigued by the all-too-common tendency for people to ignore the inescapable fact that their mothers had lives, desires and ideas of their own before they had children.

When Mina returns to Australia, she goes on a rapid voyage of discovery that brings her to what Hannan calls rock bottom.

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"Thats the point where she knows she finally has to talk to her mother. They can dance around it no longer because shes so unsatisfied by all these encounters shes had and what she is really missing is an understanding of her relationship with her mother and how her mothers relationships have affected her."

Hannan is another Australian novelist who has done time in advertising think Carey, Courtenay and, more recently, Robbie Arnott. She found it well-paid but creatively unfulfilling and, at times, morally compromising. She turned to fiction because she wanted to write something on her own terms.

"I felt incredibly lucky to be able to work and write for a living every day and I became so much better at my craft because of it. Robbie Arnott is right about the discipline: you go to work, you have a brief you have to meet, you write a certain number of words to a very strict deadline. I have carried some of that discipline over to my fiction writing, so I have a kind of crazy spreadsheet or word-count targets that I like to hit every day."

When I ask whether Jack, the character Mina is intimately involved with in the opening, is based on a real person he plays a significant albeit distant role in Kokomo she says she has to plead the fifth amendment.

"A lot of those advertising stories have come from real things I either heard about or witnessed in my agency life in London. Id better not say which ones are true because I might get in trouble, but theres definitely some truth in them."

Hannan grew up in Adelaide. "I feel like the two places where we spent most of the time as a family were the library and the art gallery and maybe the botanical gardens. I used to get so bored at the time, but now Im incredibly grateful that my mum would drag us around to those places."

Her mother apparently knew her daughter was going to be a writer when Hannan was only five: "It took me a lot longer to work that out. Maybe shes just saying that now because its happened."

I wondered whether writing Kokomo had changed Hannan. She concedes she did use it to work out her own ideas about love.

"Weve all made mistakes in love and try to understand how those mistakes have made us who we are and how they affect how we love other people too. I think I just became more grateful for the love that I do have in my life, whether thats my family or my friends and it has just made me start to think differently about what I do actually want and need."

Kokomo is published by Hachette at $32.99. Victoria Hannan is a guest at the online Melbourne Writers Festival, August 7-16. mwf.com.au

Jason Steger is Books Editor at The Age and The Sydney Morning Herald

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Victoria Hannan unpacks the many meanings of love - Sydney Morning Herald

Court overturns conviction for Cedar Rapids man accused of fatally shooting one man, seriously injuring another – The Gazette

CEDAR RAPIDS The Iowa Court of Appeals on Wednesday overturned a Cedar Rapids man conviction of fatally shooting one man and seriously injuring another during a 2017 drug deal, granting him a new trial based on a judges error during trial.

The appeals court said 6th Judicial District Chief Judge Patrick Grady shouldnt have included a jury instruction informing jurors that Quarzone Martin, who claimed self-defense, didnt report the use of deadly force to authorities and that he got rid of the gun after the shooting.

That instruction was a violation of Martins Fifth Amendment rights against self-incrimination, the appeals court held.

A Linn County jury in December 2017 found Martin, 28, guilty of second-degree murder, assault with intent to inflict serious injury, willful injury causing serious injury and going armed with intent. He was originally charged with first-degree murder and attempted murder.

Martin was convicted of fatally shooting Andrew Meeks, 26, and seriously injuring Johnny Moore Jr., 30, both of Cedar Rapids. Testimony showed Martin was armed when he met Meeks and Moore in the Walmart parking lot in southwest Cedar Rapids on July 2, 2017. The three men were all in a vehicle when the shooting occurred.

Moore testified Martin shot them during a drug deal involving Xanax pills. The dispute was over Martin, who was selling the pills, shorting Meeks and Moore on the number of pills.

Moore said Martin got out of the car and then got back in, armed with a gun. Martin shot Meeks, who was in the drivers seat, and then turned and shot Moore, who was in the back seat.

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Meeks, who still had the car in drive, accelerated after the shots were fired, crashing the car into a guard rail in the parking lot, according to testimony. Martin left before police arrived.

Testimony showed Meeks and Moore were not armed.

During the trial, the defense argued Meeks and Moore tried to rob Martin, and he was forced to defend himself.

Martin also testified he was being beaten by Meeks and that Meeks tried to shove him out of the car and he had to defend himself.

The appeals court ruling stated the Iowa Supreme Court recently ruled that a jury instruction regarding the use of deadly force and authorizing an inference of guilt in a murder case because the defendant failed to make a report to authorities unconstitutionally penalizes the defendants silence and is therefore improper to use in all cases.

Martins attorney objected to the jury instruction, which contained the provisions of the 704.2B law, but Grady allowed the instruction.

According to the ruling, a reversal is required unless error was harmless beyond a reasonable doubt.

The court couldnt say there wasnt harmless error in this case because there is not overwhelming evidence of Martins guilt or that he did not act in self-defense.

Martin was sentenced to up to 50 years in prison.

Linn County Attorney Jerry Vander Sanden said Wednesday his office would ask the Iowa Attorney Generals Office to review the appeal and provide clarification on the Iowa Code 704.2B self-defense provision.

Comments: (319) 398-8318; trish.mehaffey@thegazette.com

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Court overturns conviction for Cedar Rapids man accused of fatally shooting one man, seriously injuring another - The Gazette

Gyms sue Baker for right to let members lift things up and put them down in a pandemic – Universal Hub

The owner of Assembly Sports Club in Somerville yesterday sued Gov. Baker over the state's continued ban on health clubs, arguing the ban deprives it of its Fifth and Fourteenth Amendment rights and besides, Baker's just wrong because, as everybody knows, fitness clubs are too "essential," or at least as essential as the big-box stores Baker let stay open, except that it's even worse than that because all businesses are essential in our free-enterprise system.

The suit, filed in US District Court in Boston, joins a similar suit filed earlier this month by same attorney for the owner of gyms in Danvers, Chelmsford, Lowell and Springfield.

In the Assembly suit, owner World Gym, Inc. charges the ban, issued in March as Covid-19 spread rapidly through the state, was essentially a seizure of its property without recompense or right of appeal - and asks who the hell Charlie Baker is to order businesses to just close their doors through his "arbitrary, capricious, irrational and abusive" emergency declarations.

At a minimum, Plaintiff avers that it should have been able to decide for itself whether or not to "shut down," if its businesses / business model was not properly equipped to deal with the health and safety guidelines as issued by the Federal and State Governments in connection with the COVID-19 crisis. ...

Plaintiff avers that ALL businesses in the Commonwealth of Massachusetts are Essential to the health, welfare, and well-being of its citizens, and that the general health outcome sought through the passage of these Orders and Emergency Directives (i.e., lowering the curve of COVID-19) could be accomplished through less restrictive means.

World Gym says that the enforced shutdown has turned it into an unusable, unsellable shell of a company: It had to lay off 33 workers and can no longer collect roughly $140,000 a month in fees from members - even though its landlord still wants its monthly $47,000 rent.

Defendant's Orders and Emergency Directives mandated that because Plaintiff was a "Non-Essential Businesses", it was required to "shut down" and cease all operations as a means to help curb the spread of COVID-19. Such a mandate completely and unconstitutionally deprived Plaintiff of all economically beneficial use of its businesses without just compensation.

While the "police power" is inherent in a sovereign government and is reserved for the States in the Tenth Amendment to the U.S. Constitution, it is not without constitutional limits. ...

The Orders and Emergency Directives issued by the defendant, Governor Baker, effectively amount to an impermissible "partial" or "complete" taking in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution in that the prohibition of Plaintiffs' operation of their "Non-Essential Business" constitutes a regulatory taking of private property, for public purpose, without providing just compensation therefore.

The Orders and Emergency Directives violate the Takings Clause of the Fifth Amendment in that the complete prohibition of the business operations of "Non-Essential Businesses" constitutes an irrational, arbitrary, and capricious law bearing no rational basis to any valid government interest.

The notion that the government-ordered shutdown of "Non-Essential Businesses" (such as Plaintiff's) is absolutely necessary in curbing the spread of COVID-19 constitutes an unconstitutional infringement on Plaintiff's civil rights and liberties to operate in a free-market economy.

Also, Baker illegally used a Civil Defense law aimed at unrest following a Russian attack or a natural disaster to declare his state of emergency, and please, the complaint continues, a virus is "not an attack, sabotage, or hostile action that could justify the declaration of a Civil Defense State of Emergency."

Because his orders are being made pursuant to a statute designed to defend against foreign invaders and civil unrest in the wake of cataclysms, violations of his orders are null and void.

World Gym then cites the situation in Wisconsin, where the Republican-dominated legislature and supreme court overturned similar orders by the Democratic governor and said Baker is also usurping the legislature's role.

The company wants a judge to order Baker to let it open immediately and to award it appropriate damages, penalties and lawyer's fees.

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Gyms sue Baker for right to let members lift things up and put them down in a pandemic - Universal Hub

Legal Challenges To Eviction Bans: And Justice For All? – Forbes

American actor Al Pacino on the set of ...And Justice for All., directed by Norman Jewison. (Photo ... [+] by Columbia Pictures/Sunset Boulevard/Corbis via Getty Images)

Since March, state and local governments had one answer to the income loss created by Covid-19 induced economic shutdowns:ban eviction. But housing problems created by Covid-19 are about lost income, not eviction. But as government shut down economies they sent a signal to rational actors in the economy, You dont have to pay rent! This has createda ticking time bomb of unpaid rent and other problems like difficulty in dealing with residents in rental housing violating lease terms, and creating unsafe conditions and neighbor complaints. Ive talked aboutproperty tax strikes andforbearance, but what about challenging damaging government actions in court?

Its a reasonable question. Our culture has celebrates the big courtroom showdown. Think of the filmInherit the Wind, a portrayal of the Scopes Monkey Trial. And there isThe Verdict, my all time favorite, about a story of a down-on-his luck attorney who finally wins one. And if you feel like I do about the actions of local government, you shouldnt miss lawyer Arthur Kirklands (played by Al Pacino) opening statement in And Justice For All.

The legal challenges are starting like the one in California being pursued by thePacific Legal Foundation(PLF) against judges who shut down eviction court. From the PLF blog describing the case:

Peggy Christensen, a retiree who depends on her rental income, cannot take legal action against tenants who damage the property, harass other tenants, or refuse to pay rent. It also means that landlords like Peggy are forced to turn away considerate renters in need of housing. In making this rule, the Judicial Council has seized policymaking power from the legislature and governor to block landlords access to the courts.

It sounds promising. So why am I so skeptical of legal challenges to profoundly damaging and misguided eviction bans? Heres some thoughts Ive shared privately as these efforts have gotten underway.

Legal Challenges Take a Long Time

Even in normal times, finding a willing plaintiff, gathering financial resources, deciding strategy, and getting a hearing takes months not weeks. It is very unlikely that any legal challenge, no matter how well put together, will bring substantive and satisfying relief this calendar year. Most courts are backed up and bogged down, and usually arguments take time to get scheduled before a judge. It could be well into 2021 when a ruling could be made, even longer if the ruling is appealed.

Expensive

Even a single-issue challenge, narrowly construed with an aggressive timeline is expensive. I've seen legal costs double and triple on small challenges. Lawyers are valuable experts and the good ones don't come cheap. Time is money. Government will make every procedural challenge on standing, venue, and ripeness. Every hour arguing process and keeping a case from being dismissed costs just as much money as fancy Perry Mason lawyering. Local governments have endless legal resources while challengers do not.

Results Uncertain

Civil legal decisions, unlike criminal ones, rarely result in a verdict of "guilty" or "not guilty."Challenges to eviction bans wont be the OJ Trial. When trying to put together an argument, lawyers are asking a question of the law hoping that their argument will result in an interpretation of law favorable to their client. When a Seattle law requiring that housing providers were denied the ability to choose who rents their property, forcing them to rent to the first person showing up, the so called "First in Time (FIT)" law, the Washington State Supreme Court upheld FIT 9-0,a shocking decision. When the Supreme Court of the United Statesdid not hear the case, what resulted, essentially, was a validation of the City's law.This is actually worse than ifa challenge had never been filed. Other cities all over the country now may feel emboldened to do FIT themselves. The FIT law is horrible, and wrong, and few people expected it would survive; it did, and now we have to live with the consequences.

The Challenge Could Fail

What happens when courts start ruling that cities can close the courts and ban eviction? The City of Seattle can argue, "We didn't 'ban' eviction, we just added a defense for people who are evicted; a judge still makes a decision." And this is more or less what City Council President, Lorena Gonzalez (a lawyer) said again and again in the public record. Introducing a new defense still allows eviction, hardly a "taking" under the Fifth Amendment. And remember, judges in Washington hearing challenges to laws like these are politicians, elected by the same people that elected Gonzalez, the Mayor, the Council and yes, Socialist KshamaSawant. And under the robes, they suffer fromSally Field Syndrometoo.

Wrong story

And heres the biggest reason I think these challenges wont help even if some of them are successful and roll back bans and other bad eviction interventions: success just confirms the narrative of the greedy landlords who really aren't suffering but well healed wealthy people collecting passive income from the poor; they have plenty of money to spend on fancy lawyers so they can evict those poor people who lost their jobs through no fault of their own!

Legal Challenges Must Be Part of a Coherent Strategy

I've spent this entire COVID-19 crisis saying the Covid-19 is about income loss among sympathetic residents. Many of us have argued for income replacement and rent relief as the only and compassionate solution. When people in the general public hear the words, Property Rights they think of cowboys with guns protecting a shack in the woods from federal agents. Even though private property and markets are being explicitly challenged by socialists, its going to take time to persuade the average American that the chant, Housing is a Human Right is signal of a dangerous and destructive tide.

So, any legal challenge has to include,

Changing the Narrative

People in the real estate business are as good as people in any other business, but they are often too portfolio driven by, focused on how public policy affects their investment and certain they are smart enough to make it through the storm. Smaller housing providers who earn supplement income with fewer units dont have the resources to challenge the prevailing and dominant greedy landlord myth.

So almost nobody is working on that last bullet, helping people understand that the local apartment building whether a giant one of glass or steel or a little brick fourplex is a business serving local people just like the grocery store or the corner bar; and just like those businesses, rental housing is risky and operates on the margins. No lawsuit, even one with a thrilling and satisfying verdict, can do the hard work of changing the story about housing. Without doing that, housing provider legal efforts are more like My Cousin Vinnie thanTo Kill a Mockingbird.

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Legal Challenges To Eviction Bans: And Justice For All? - Forbes

Thuraissigiam and the Future of the Suspension Clause – Lawfare

On June 25, the Supreme Court issued its much-anticipated holding in Department of Homeland Security v. Thuraissigiam, rejecting Suspension Clause and due process challenges to restrictions on the ability of asylum-seekers to obtain review of expedited administrative removal proceedings. As explored below, the potential ramifications of the decision are significant for a number of reasons, not the least of which is that it calls into question several aspects of the Supreme Courts earlier decision in Boumediene v. Bush and more generally signals a more limited vision of the Suspension Clause than Boumediene embraced.

The Decision

Thuraissigiam crossed into the United States clandestinely, and a Border Patrol agent apprehended him within 25 yards of the border. Once in government custody, he sought asylum in the administrative proceedings prescribed in various immigration provisions by Congress, but he failed to convince immigration officials that he had a credible fear of persecution upon return to his native country of Sri Lanka. Had he succeeded in demonstrating a credible fear, Thuraissigiam would have been spared expedited removal under 8 U.S.C. 1252(e)(2) and afforded additional procedural opportunities to seek asylum in the United States. Instead, an immigration judge approved his removalwhich, under the statutory scheme, normally would have concluded the matter. Thuraissigiam next sought a writ of habeas corpus in federal court, contending that he satisfied the credible fear test and that he had been denied a full and fair opportunity in the prescribed proceedings to demonstrate that he satisfied the relevant standard. Challenging the immigration provisions that purported to restrict federal court review of his case (including one that specifically precluded any and all judicial review of a credible fear determination), Thuraissigiams habeas petition sought a new opportunity to present his asylum claim before administrative officials.

Justice Samuel Alitos opinion for the Supreme Court (joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh) addressed Thuraissigiams claims sequentially. As discussed below, however, much of the analysis worked in tandem. First, in addressing Thuraissigiams argument that the federal court should exercise jurisdiction and grant him relief in the form of a new hearing by reason of the Suspension Clause, Alito posited that the inquiry should ask how the Founding generation understood that clause in 1789. The court framed its inquiry this way in reliance on a footnote in Thuraissigiams brief, which maintained that there is no reason for the court to decide whether the scope of the Clause has expanded since 1789. (It is far from clear that Thuraissigiams counsel intended to disclaim reliance on an argument that the writ of habeas corpus may have expanded since 1789.)

Thuraissigiams claim failed because, in the Supreme Courts view, habeas at the time of the Founding was a means to secure release from unlawful detention and did not extend to an invocation of the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country. Neither the Supreme Courts earlier immigration decision in INS v. St. Cyr (2001), nor its blockbuster decision in Boumediene (2008), counseled otherwise. This was because, as the court explained, the principle embraced by St. Cyrnamely, that the writ could be invoked by aliens already in the country who were held in custody pending deportationcould not help Thuraissigiam, who by contrast sought entry into the United States. Boumediene, in turn, was inapposite because it involved individuals who had been apprehended on the battlefield in Afghanistan and elsewhere, not while crossing the border and who sought only to be released from Guantanamo, not to enter this country.

As for petitioners due process argument, the Supreme Court noted that [w]hile aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an aliens lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. That Thuraissigiam was taken into custody on U.S. soil did not matter in light of Congresss plenary authority to decide which aliens to admit and precedents providing that even those paroled elsewhere in the country for years pending removal ... are treated for due process purposes as if stopped at the border[.] Thuraissigiam, accordingly, had no entitlement to procedural rights other than those afforded by statute. In sum, Thuraissigiam was not entitled to any further review of his removal order. All the same, the majority opinion dropped a final footnote in which it observed that Department officials and immigration judges may reopen cases or reconsider decisions ... , and the Executive always has discretion not to remove[.]

Thomas wrote a concurring opinion exploring the original meaning of the Suspension Clause, concluding that the expedited removal procedures here at issue bore little resemblance to a suspension as that term was understood at the founding. This followed because they did not allow the executive to detain based on mere suspicion of a crime or dangerousness, the purpose regularly animating suspensions during and before the Founding period.

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, concurred in the judgment. He believed that the statutory scheme was constitutional as applied to Thuraissigiam but reserved judgment in a host of hypothetical situations that could come before the Supreme Court in the future. Breyer emphasized Thuraissigiams status as akin to one stopped at the border and opined that [t]o interpret the Suspension Clause as insisting upon habeas review of these claims would require, by constitutional command, that the habeas court make indeterminate and highly record-intensive judgments on matters of degree. In his view, Thuraissigiams claims failed because there existed no precedent suggesting that the Suspension Clause demands parsing procedural compliance at so granular a level.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, dissented. Sotomayor maintained that the Supreme Court had long heard claims indistinguishable from those raised by Thuraissigiam, which, in her view, encompassed both mixed questions of law and fact and legal challenges to procedural defects in the removal procedures that Congress had prescribed. She also took issue with the majoritys originalist approach to the case, pointing out (as the majority opinion acknowledged) that no analogous immigration restrictions were in existence at the Founding. Finally, in analyzing Thuraissigiams claims under the Due Process Clause, Sotomayor emphasized that he was actually within the territorial limits of the United States when captureda fact that, in her view, raised a host of questions as to just how far the majoritys holding would sweep in future cases.

Methodology

There is a great deal that must be unpacked in order to understand Thuraissigiams potential ramifications. To start, consider the constitutional interpretive methodology employed by the majority opinion.

Alito started and ended his inquiry with 1789 as the key benchmark for the Suspension Clause inquiry. His decision to do so implicates some interesting issues. To begin, the justification he offered for this approach was an apparent concession in a footnote in Thuraissigiams brief. This explanation should mean that Thuraissigiam has no precedential value in terms of its methodology for a future case where a petitioner makes a Suspension Clause claim based on post-1789 developments with respect to the writ of habeas corpusa possibility that the Supreme Court has held open in other cases. For example, Justice Anthony Kennedys majority opinion in Boumediene stated that the Supreme Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments.

Further, the majority apparently deemed it irrelevant that during the Founding period and for decades thereafter, federal policy provided (as the majority acknowledged) an open door to the immigrant. In other words, a challenge to a limitation on review of immigration determinations could never have arisen during that period, because there were no such limitations. How does one reconstruct an originalist answer to a question that was never asked at the Founding?

As noted, Thomass concurrence also analyzed the case from an originalist perspective. He last wrote about the Suspension Clause case in his separate opinion in Hamdi v. Rumsfeld (2004), arguing there that the clause does not constrain the executives ability to detain a citizen outside the criminal process and in the absence of a suspension. This followed, he argued, from recognition of a broad understanding of the governments power to wage war successfully along with more general concerns that the limited opportunities in which the Suspension Clause might permit a suspension (specifically, in times of Rebellion or Invasion) might not encompass many ... emergencies during which this detention authority might be necessary. In this respect, Thomas joined camp with the Hamdi pluralitys bottom line, namely that [t]here is no bar to this Nations holding one of its own citizens as an enemy combatant.

Dissenting in Hamdi, Justice Antonin Scalia, joined by Justice John Paul Stevens, relied on extensive historical evidence to explain that the entire point of the Suspension Clause was to prohibit the government from detaining someone who fell within the Constitutions protections in the absence of a criminal trial unless and until Congress enacted a suspension. The dissent also underscored the influence of the 1679 English Habeas Corpus Actwhat Blackstone once described as nothing short of a second magna cartaon the Suspension Clause.

Notably, Thomass opinion in Thuraissigiam set forth a view of the Suspension Clause very much in line with Scalias Hamdi dissent. Citing a host of suspensions predating and during the Founding period (including those adopted in Britain and several states during the Revolutionary War), Thomas concluded that the original meaning of a suspension likely [encompassed] a statute granting the executive the power to detain without bail or trial based on mere suspicion of a crime or dangerousness. It followed, in his view, that the Suspension Clause enshrined a substantive rightspecifically, freedom from discretionary detention at the hands of the executive.

I have previously criticized Thomass opinion in Hamdi for being out-of-step with his avowed originalist methodology. His Thuraissigiam opinion suggests that he now recognizes the error of his earlier ways. I hope so.

The Appropriate Remedy

Another interesting aspect of Thuraissigiam is the majority opinions emphasis on the appropriate remedy in Suspension Clause cases. The majority found problematic Thuraissigiams desire for additional procedures to make out his asylum claim and ultimate release into this country because, in Alitos view, the traditional remedy in habeas proceedings was discharge, not additional process. As the Supreme Court explained things, historically, [t]he writ simply provided a means of contesting the lawfulness of restraint and securing release. In the courts view, the problem was that Thuraissigiam did not ask to be released. Instead, he sought entirely different relief: vacatur of his removal order and an order directing [the Department] to provide him with a new ... opportunity to apply for asylum and other relief from removal[] (quoting Thuraissigiams habeas petition).

My book Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay chronicles the role of habeas cases tethered to the English Habeas Corpus Act and its suspension model. As the book details, this model heavily influenced the development of early American habeas jurisprudence and specifically the drafting of the Suspension Clause. As this history reveals, Alito is correct that the classic remedy in such habeas cases was discharge, not additional process. (No less than Chief Justice John Marshall said as much, moreover, in Ex parte Bollman.)

All the same, as a matter of precedent, two recent Supreme Court Suspension Clause decisions remanded petitions for additional judicial process as opposed to awarding outright discharge. They are, of course, Hamdi and Boumediene. In both cases, the court ordered additional hearings for the habeas petitioners to challenge their classification by the government as enemy combatants in the war on terrorism. I have been critical of this aspect of both decisions because, among other reasons, this approach led to a holding in Hamdi that is at odds with the core purpose that drove ratification of the Suspension Clause and established what some might call a constitutional floor. Regardless of whether my position is right on this score, the decision in Thuraissigiam is noteworthy for charting a different course from Hamdi and Boumediene and potentially scaling back the range of remedies now available under the Suspension Clause to habeas petitioners going forward.

An additional note is warranted here. In Thuraissigiam, the majority opinion (at note 12), as well as Sotomayors dissent (at note 1), both state that the Supreme Court has left open the question whether the Suspension Clause creates an affirmative right to review. But Boumediene squarely held that the clause does precisely this. (In the Courts words, [t]he Clause ... ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the delicate balance of governance that is itself the surest safeguard of liberty.) I argue in my book that Boumediene was correct on this score in light of the extensive [historical] evidence ... demonstrating that the Founding generation simply took for granted that a constitutional privilege born out of the protections of the Habeas Corpus Act would be available unless suspended. That the Thuraissigiam majority apparently reopens this issue begs the question of just what, if any, of the Boumediene majority opinion remains good law. (More on this below.)

The Intersection of the Suspension Clause With Due Process

Next is the question of how Suspension Clause and due process jurisprudence intersect. The courts decisions in St. Cyr and Boumediene were grounded in the Suspension Clause. The due process case law in the immigration context, moreover, is not exactly friendly to the would-be immigranteven though the Fifth Amendment Due Process Clause applies to persons as opposed to citizens. This likely explains why Thuraissigiams counsel primarily pushed a Suspension Clause argument as opposed to a due process one.

But it is worth thinking about the relationship between the two kinds of claims and asking whether they should stand or fall together. For the majority in Thuraissigiam, the due process and Suspension Clause inquiries seemed interrelated, with geographic and citizenship status both weighing heavily in the balance. (More on that below.)

This distinction between the due process and Suspension Clause inquiries, muddied in Thuraissigiam, could matter a great deal in future cases because of the Thuraissigiam courts diminished view of the range of remedies available under the Suspension Clause as well as its seemingly formalist approach to elements of Thuraissigiams case. (More on that below.)

Take the example of someone who is picked up after years of living in this country as an undocumented alien or the example of an immigration hearing officer who either does not conduct any actual review of a credible fear claim or applies an absurd standard. (Breyer here offered the example of a hearing officer who denies a refugee asylum based on the dead-wrong legal interpretation that Judaism does not qualify as a religion under governing law[.]) Breyer observed that he would view a Suspension Clause claim differently in such cases, and one can presume from Sotomayors dissent that she would too.

In Breyers view, the Suspension Clause is well equipped to address such cases because habeas corpus is, as Boumediene said, an adaptable remedy, whose guarantees may change depending upon the circumstances. But the Thuraissigiam courts emphasis on discharge as the appropriate remedy under the Suspension Clause renders uncertain whether a Suspension Clause argument could prevail in such cases under the majoritys approach and therefore more generally calls into question whether Boumedienes vision of habeas fully survives.

Thus, in the wake of Thuraissigiam, it might warrant consideration whether the Suspension Clause and due process inquiries should be disconnected to permit a different approachnamely, analyzing cases akin to the above hypotheticals instead through a due process lens. Indeed, one might think that the modern due process doctrine with its balancing test is better equipped to take into account how different factors might alter the balance in determining whether the government must afford certain individuals greater procedural protections before turning them away at the proverbial gates and removing them once already in the country. On this point, recall that Justice Sandra Day OConnors plurality opinion in Hamdiinstead of looking to history or any Suspension Clause precedentsrelied on the modern due process decision in Mathews v. Eldridge to set forth the parameters of the hearing that Hamdi was to receive on remand.

To see why the distinction might matter, consider a hypothetical that Daniel Meltzer raised in a 1998 Georgetown Law Journal article. In that hypothetical, a resident alien is removed from the United States before being afforded an opportunity to get into court. It would be hard to mount a habeas case under existing law if the individual is not in government custody, but the individual might still have important legal claims to present challenging the removal and/or the process by which it occurredmaybe even claims identical to those that the Supreme Court held in St. Cyr must receive the benefit of judicial review. One would hope that any preclusion of judicial review in such a case would be viewed as constitutionally problematic, but the question then implicated is on what basis if not the Suspension Clause? The answer could be very important for future cases.

The Importance of Geography

Finally, Thuraissigiam implicates the larger question of how the Constitution functions abroad and, more specifically, what qualifies as abroad in the first instance. The Supreme Court held that Thuraissigiams case was categorically different from that of one who is already in the country [and] held in custody pending deportation. Giving deference to Congresss plenary authority to decide which aliens to admit, it was of no relevance to the majority that he had crossed the border and been apprehended some 25 yards inside the United States. (On this point, Sotomayor disagreed.) Such a conclusion was important, the majority opined, lest the rule reward those who cross the border illegally.

Just days after deciding Thuraissigiam, the Supreme Court reaffirmed the importance of the border to constitutional analysis. In Agency for International Development v. Alliance for Open Society International, Inc, a five-justice majority rejected the proposition that foreign affiliates of American organizations could bring a First Amendment challenge to conditions that Congress attached to funding grants made to combat HIV/AIDS abroad. Kavanaughs opinion for the court posited that it is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. He further warned that [i]f the rule were otherwise, actions by American military, intelligence, and law enforcement personnel against foreign organizations or foreign citizens in foreign countries would be constrained by the foreign citizens purported rights under the U. S. Constitution. He distinguished the situation of foreign citizens inside the United States, who may enjoy certain constitutional rights[,] such as the right to due process in a criminal trial. Finally, the court set apart those cases in which under some circumstances, foreign citizens in the U. S. Territoriesor in a territory under the indefinite and complete and total control and within the constant jurisdiction of the United Statesmay possess certain constitutional rights (citing and quoting Boumediene). (Writing for three dissenters, Breyer maintained that this Court has studiously avoided establishing an absolute rule governing the application of the Constitution to foreign citizens abroad, relying on not one, but two, Kennedy opinionshis Boumediene majority opinion and his decisive but narrow concurrence in United States v. Verdugo-Urquidez.)

The decisions in Thuraissigiam and Alliance for Open Society International highlight that for at least five members of the current Supreme Court, the border and ones formal connection to the United States play an outsized role in constitutional analysis. On this score, consider that Thuraissigiam distinguished the situation of a citizen who is detained in the United States for deportation, clarifying that todays opinion would not prevent the citizen from petitioning for release.

Notably, moreover, Alliance for Open Society International seems to have relegated Boumediene to a small role in future casessuggesting that its application is limited to cases arising in territories under the full (even if not formal) control of the U.S. government. (To be sure, Boumediene may have done this by its own terms, highlighting as it did the unique status of Guantanamo Bay[.]) Even in such places, moreover, Kavanaugh said only that a foreign citizen may possess certain constitutional rights, not that they necessarily would (emphasis added). Again, one is left to wonder how much influence Boumediene will have in future cases.

Going forward, this development could be quite significant. Consider anew the example of one who enters the United States without legal authorization and who is apprehended years later and put into removal proceedings. Taken to their extremes, the majority opinions in Thuraissigiam and Alliance for Open Society International could be read to suggest that the Constitution does not impose any constraints on how the government goes about removing the individual from the United States because such a person may be treated as a foreigner who stands functionally outside the border even if that individual is physically within the country. Needless to say, a large number of persons living inside the United States right now might fall into this category. As Breyer noted in his Thuraissigiam concurrence, moreover, the fact that under current federal law, noncitizens who have lived in the United States for up to two years may be placed in expedited-removal proceedingsthat is, the same abbreviated proceedings upheld in Thuraissigiamthe potential for such a case to arise is hardly trivial.

The courts decision in Thuraissigiam is a big deal. How big remains to be seen.

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