Monday, November 25, 2002

HABEAS HOCUS POCUS (originally posted 6/26/01)

There's really not much to say about INS v. St. Cyr, No. 00-767, beyond the glaringly obvious points set out so ably by Justice Scalia in dissent. But we can't resist recapping some of the highlights of the Court's "reasoning." The Court is in rare form.

Justice Stevens has his work cut out for him in having to reach the conclusion that habeas is not a species of "review" for purposes of a statute that expressly refers to "REVIEW [of deportation orders] by habeas corpus proceedings." 8 U.S.C. sec. 1105a(a)(10) (emphasis added). But Stevens is up to the task! As noted by Justice Scalia, the Court's primary tool is to set out the relevant statutory provisions in a needlessly confusing and illogical way, not even starting to quote the statute until the eighteenth page of the slip opinion and scattering the quotes piecemeal throughout the balance of the opinion. In fact, the Court never even bothers to explain how its holding is to be squared with the express statutory reference to habeas "review" quoted above. We marvel at Justice Stevens's interpretive prowess: clearly if the Congress had intended to eliminate custody of review by habeas corpus it would have been much clearer than the highly ambiguous "ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS" provision it actually enacted in AEDPA sec. 401(e).

The Stevens constitutional exegesis regarding the Habeas Suspension Clause is another tour de force, managing to rewrite the constitutional text, disregard its history, and warp the subsequent case law all at once.

Finally, it's worth taking a step back and considering the underlying INS discretion not to deport whose withdrawal St. Cyr claims was prospective. We're talking about a made-up rule based on a statute that on its face applies only to exclusion proceedings, not deportations. How ironic that the habeas right is being stretched in defense of patently unlawful government action.

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