Justice Scalia's One-Way Ratchet: Congress and Federal Habeas Jurisdiction

I've just posted to SSRN a draft of a new (and short) essay that is to be published later this summer by The Green Bag. The essay, titled "The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia," tries to shed light on a missing piece of the ever-ongoing debate concerning Congress's power over the habeas corpus jurisdiction of the Article III courts.

To spoil some of the fun, the essay's central argument is that statutes such as the Military Commissions Act are constitutionally problematic entirely because there are no other courts in which detainees may otherwise bring habeas petitions. Ex parte Bollman arguably prevents detainees from going straight to the Supreme Court, and Tarble's Case, for better or worse, prevents detainees from pressing their claims in state courts. None of that, of course, is new.

But it's an obscure provision of the D.C. Code (section 16-1901(b)), and not a Supreme Court decision, that closes off the last possible escape valve -- the D.C. Superior Court. As the essay explains, the D.C. Superior Court would otherwise likely have the authority to issue a common-law writ of habeas corpus against a federal officer, which would vitiate any Suspension Clause-based challenges to statutes such as the MCA. In other words, what makes the constitutional question so tricky when Congress attempts to constrain the habeas jurisdiction of the Article III courts is that Congress already has constrained the jurisdiction of the one court that would otherwise be open...

In his dissent in St. Cyr, Justice Scalia suggested that Congress's power over federal habeas jurisdiction was necessarily plenary: "If . . . the writ could not be suspended 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.” As the essay concludes, such a statement is absolutely true, but thoroughly incomplete. The ratchet results only from the fact that Congress has itself already precluded access to the common-law writ in the D.C. local courts.