Hastings Constitutional Law Quarterly


Dan Poulson


The 1996 Anti-Terrorism and Effective Death Penalty Act dramatically revised the manner in which federal courts exercise jurisdiction in habeas corpus petitions. Under 28 U.S.C. 2254(d)(1), federal courts cannot grant habeas relief to state prisoners with regard to any claim that has been adjudicated on the merits by a state court unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

Various critics have assailed this language as an unconstitutional limitation on the decision-making powers of federal courts. In particular, critics contend that § 2254(d)(1) violates Separation of Powers principles articulated in Marbury v. Madison, United States v. Klein, and City of Boerne v. Flores. However, these constitutional challenges have largely neglected the Constitution's Suspension Clause, which provides that "[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The Suspension Clause has been overlooked in part because of Chief Justice John Marshall's 1807 opinion in Exparte Bollman, which gave the Suspension Clause an extremely narrow reading and apparently ceded to Congress unilateral power to define the circumstances in which habeas relief could be granted. This note argues that this interpretation of Bollman and the Suspension Clause is incorrect. Bollman noted in forceful terms that while the jurisdictional boundaries of the writ were subject to congressional approval, the actual meaning of the writ was left in the hands of the judiciary. While Congress is free to suspend the writ in times of rebellion or national emergency, nothing in the Suspension Clause contemplates Congress's powers as encompassing the right to dictate the writ's substantive meaning. Indeed, such power, when taken to its logical endpoint, would render the writ-and the Suspension Clausean empty, formalistic gesture.