INS v. St. Cyr, 533 U.S. 289, 16 (2001)

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Opinion of the Court

improper exercise of official discretion. See n. 23, supra; Hafetz, The Untold Story of Noncriminal Habeas Corpus and the 1996 Immigration Acts, 107 Yale L. J. 2509 (1998).

St. Cyr's constitutional position also finds some support in our prior immigration cases. In Heikkila v. Barber, the Court observed that the then-existing statutory immigration scheme "had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution," 345 U. S., at 234-235 (emphasis added)—and that scheme, as discussed below, did allow for review on habeas of questions of law concerning an alien's eligibility for discretionary relief. Therefore, while the INS' historical arguments are not insubstantial, the ambiguities in the scope of the exercise of the writ at common law identified by St. Cyr, and the suggestions in this Court's prior decisions as to the extent to which habeas review could be limited consistent with the Constitution, convince us that the Suspension Clause questions that would be presented by the INS' reading of the immigration statutes before us are difficult and significant.24

In sum, even assuming that the Suspension Clause protects only the writ as it existed in 1789, there is substantial

24 The dissent reads into Chief Justice Marshall's opinion in Ex parte Bollman, 4 Cranch 75 (1807), support for a proposition that the Chief Justice did not endorse, either explicitly or implicitly. See post, at 339- 340 (opinion of Scalia, J.). He did note that "the first congress of the United States" acted under "the immediate influence" of the injunction provided by the Suspension Clause when it gave "life and activity" to "this great constitutional privilege" in the Judiciary Act of 1789, and that the writ could not be suspended until after the statute was enacted. 4 Cranch, at 95. That statement, however, surely does not imply that Marshall believed the Framers had drafted a Clause that would proscribe a temporary abrogation of the writ, while permitting its permanent suspension. Indeed, Marshall's comment expresses the far more sensible view that the Clause was intended to preclude any possibility that "the privilege itself would be lost" by either the inaction or the action of Congress. See, e. g., ibid. (noting that the Founders "must have felt, with peculiar force, the obligation" imposed by the Suspension Clause).

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