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Thursday, October 15, 2020

Habeas Corpus, Non-Delegation, and the Pandemic

Let's try a thought experiment. Suppose next year Congress passes the "Habeas Corpus Suspension Act of 2021." The Act recites the constitutional standard for habeas corpus suspension and then delegates to the President the power to suspend. Would that Act be constitutional? Probably not. Why? Partly because of the purpose of habeas corpus to limit executive detention authority, the common law history of the writ, and the practice of habeas suspension in Parliament and in Congress.

I mention this for two reasons. First, the history of habeas suspension might be a good place to look for guidelines in a future non-delegation case. The Supreme Court will eventually find a case to declare a delegation of congressional authority invalid. Good luck explaining why that would be so, but perhaps habeas suspension practice can offer some assistance.

Second, habeas suspension provides an analogy for thinking about recent cases involving COVID-19 restrictions on civil liberties. One problem with these restrictions is that they come from executive and local officials acting under broad and old statutes delegating that sort of health authority. These health emergency statutes can be analogized to the hypothetical Habeas Corpus Suspension Act of 2021, unless you think that criminal detention is so different from the current curbs as to make the examples distinguishable. At some point, though, a state constitution or the federal constitution might require that a legislature act now and specifically for civil liberty restrictions to reach beyond the immediate crisis period before the legislature can be called back into session.

Requiring legislative authorization would address some of the legitimacy concerns surrounding these measures and allow for exceptions to be discussed and addressed. This would not foreclose a constitutional challenge to a statute enacted now that places restrictions on speech, religious practice, gun shops, abortions, etc. Current legislative action, though, would reduce the number of these challenges and put the subsequent health actions on a stronger footing. Especially as we have no idea how long they will be required.

Posted by Gerard Magliocca on October 15, 2020 at 08:26 AM | Permalink


It seems clear to me that state governments--and not the federal government--should be the driving forces behind COVID response. Since states' COVID infections ebb and rise at different rates, and since state governments are closer to the people and easier for the people to exert control, it seems state governments should be the ones by and large calling the shots.

Posted by: thegreatdisappointment | Oct 15, 2020 2:02:24 PM

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