INS v. St. Cyr, 533 U.S. 289, 53 (2001)

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Cite as: 533 U. S. 289 (2001)

Scalia, J., dissenting

There is no more reason for us to believe, than there was for the Marshall Court to believe, that the Suspension Clause means anything other than what it says.

B

Even if one were to assume that the Suspension Clause, despite its text and the Marshall Court's understanding, guarantees some constitutional minimum of habeas relief, that minimum would assuredly not embrace the rarified right asserted here: the right to judicial compulsion of the exercise of Executive discretion (which may be exercised favorably or unfavorably) regarding a prisoner's release. If one reads the Suspension Clause as a guarantee of habeas relief, the obvious question presented is: What habeas relief? There are only two alternatives, the first of which is too absurd to be seriously entertained. It could be contended that Congress "suspends" the writ whenever it eliminates any prior ground for the writ that it adopted. Thus, if Congress should ever (in the view of this Court) have authorized immediate habeas corpus—without the need to exhaust administrative remedies—for a person arrested as an illegal alien, Congress would never be able (in the light of sad experience) to revise that disposition. The Suspensee ibid. There is nothing "implici[t]" whatsoever about Chief Justice Marshall's categorical statement that "the power to award the writ [of habeas corpus] by any of the courts of the United States, must be given by written law," 4 Cranch, at 94. See also ibid., quoted supra, at 340 ("[T]he power of taking cognizance of any question between individuals, or between the government and individuals . . . must be given by written law"). If, as the Court concedes, "the writ could not be suspended," ante, at 304, n. 24, within the meaning of the Suspension Clause until Congress affirmatively provided for habeas by statute, then surely Congress may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet, see infra this page and 342. The Court's position that a permanent repeal of habeas jurisdiction is unthinkable (and hence a violation of the Suspension Clause) is simply incompatible with its (and Marshall's) belief that a failure to confer habeas jurisdiction is not unthinkable.

341

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