an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
More on al Maqaleh: The Discomfiting Analogy Between Boumediene and Lawrence
Much has been written about Justice Kennedy’s 2003 opinion for the majority in Lawrence v. Texas, and what it actually held in striking down a Texas law that banned homosexual sodomy. The prevailing wisdom seems to be that Kennedy went further than Romer-like “rational basis-plus” equal protection analysis (since that was the gist of Justice O’Connor’s narrower concurrence), but that he did not go so far as to hold either that (1) the Texas law violated a previously unrecognized fundamental right; or (2) discrimination on the basis of sexual orientation warranted heightened scrutiny under the Equal Protection Clause. All we can safely say (and all I tell my Constitutional Law students) is that “somewhere in between” Romer and these two possibilities is where the Court must have ended up. Indeed, the uncertainty over Lawrence has been reflected in some of the key lower-court decisions in the seven years since; two circuits split on whether state laws banning the sale of sex toys were unconstitutional after Lawrence, with the split turning entirely on disagreement over how far Lawrence went; the Kansas Supreme Court struck down the state’s “Romeo and Juliet” law for discriminating against homosexual liaisons; and the Eleventh Circuit, in one of the most controversial post-Lawrence decisions, upheld Florida’s ban on adoption by homosexual parents (which a state court subsequently invalidated). Suffice it to say that the question of Lawrence’s true legacy looms large still today.
The more that time has elapsed since last Friday’s D.C. Circuit decision in al Maqaleh v. Gates, holding that the Suspension Clause does not protect non-citizens detained at Bagram Air Base in Afghanistan, the more I’ve come to think that Maqaleh is the manifestation of comparable uncertainty in Justice Kennedy’s opinion for the Court in Boumediene. Put another way, although I continue to think (as I wrote last week) that Maqaleh is wrongly decided (and is, in any event, distressingly naïve), I also think it is not inconsistent with at least some of Boumediene—and that its wrongness is, in all fairness, Justice Kennedy’s fault.
In one sense, Maqaleh is, quite self-consciously, a careful application of the “test” Justice Kennedy articulated in Boumediene. As the Court of Appeals explained, Boumediene suggested three factors that must be balanced in determining whether the Suspension Clause “applies”:
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.
Applying these factors, the D.C. Circuit concluded that (1) and (2) counseled in favor of habeas (indeed, (1) was even stronger here than in Guantánamo), but that (3) weighed strongly to the contrary, given the proximity of the Bagram detention facility to the “battlefield,” and to ongoing active combat operations. Thus, the Court of Appeals concluded, the balancing test that supported habeas in the Guantánamo context cut against it vis-à-vis Bagram, never mind that Judge Bates had applied the exact same standard and come to the opposite result in the district court.
Although Chief Judge Sentelle’s opinion doesn’t acknowledge it, there’s another aspect to Justice Kennedy’s opinion for the Boumediene Court, in which he devoted pages and pages to the structural significance of the Suspension Clause, and to the critical role it plays in protecting the separation of powers. I’ve written about the separation-of-powers analysis and its underpinnings at some length, but I think it’s typified by the following passage in Boumediene:
The [Suspension] Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause. [emphasis added]
In other words, although courts should weigh the three identified factors, they should also understand that the separation of powers places a fairly powerful thumb on the side of judicial review. And it does so not to protect the rights of the detainees as such, but to preserve the role of the courts. Indeed, in no fewer than eleven distinct passages, the Boumediene majority expressly linked habeas to the separation of powers, suggesting that the unique characteristics of the United States’ control over Guantánamo may have been important, but were not dispositive—and that the structural features of the writ had a lot to say about its extraterritorial availability. The Court didn’t go so far as to suggest that, because the Suspension Clause is a structural constraint on governmental conduct, it applies everywhere. Nor, though, did it suggest that those structural concerns were irrelevant. As I’ve argued before, there’s just no way to understand Justice Kennedy’s response to the Chief Justice’s dissent, in particular, without accounting for the separation of powers implications separate from the due process rights of the detainees.
Just like Lawrence, then, Boumediene’s actual holding seems to fit uncomfortably between two available—but clearly rejected—alternatives: (1) that the Suspension Clause extends no further than Guantánamo; or (2) that the Suspension Clause, as a structural constraint on federal power, protects anyone in U.S. custody, regardless of where they are held. And just like Lawrence, it is the subsequent cases more than the decision itself that will provide the truest testament to the scope of the original holding. That’s why Maqaleh is going to matter so much. And, unlike Lawrence, it isn’t likely that there will be a host of additional cases testing Boumediene’s application in other corners of the world. For one, we just don’t have that many overseas detention facilities (that we know of, anyway). Second, and perhaps more perniciously, Maqlaeh creates perverse incentives for the government to hold anyone picked up outside the United States in Afghanistan, at least for the time being.
In short, then, to whatever extent the series of conflicting post-Lawrence cases have usefully tested the scope and limits of the principle Justice Kennedy meant to articulate in his opinion for the Court, Maqaleh may well be it for Boumediene. With no chance of certiorari and even longer odds for rehearing en banc, it seems that we’ve ended up with one of the narrower possible readings of Justice Kennedy’s opinion, whether he meant it or not.
Steve Vladeck is Professor of Law at American University Washington College of Law. You can reach him by e-mail address at svladeck at wcl.american.edu