In the summer of 2020, immigration law seemed to become the gravitational center of presidential power. After the Supreme Court decided several immigration cases in favor of the executive department, former President Trump cited “the DACA case” to support a new constitutional theory that “[t]he Supreme Court gave the president of the United States powers that nobody thought the president had.” Accordingly, Trump began to issue presidential legislation including “an immigration plan, a health care plan, and various other plans.”
Trump also began to occupy cities that were politically opposed to his presidency with ICE and CBP agents, including BORTAC (“Border Patrol Tactical Unit”), citing a pretext of defending federal buildings from protesters. Finally on January 6, 2021, Trump attempted to force Congress to decide the election in his favor by inciting a violent insurrection of pro-Trump protesters. The desecration of the U.S. Capitol Building that followed made the Trump administration’s former pretext of defending federal buildings from protesters appear as nothing more than a ruse.
The U.S. legal community had reason to hope that habeas corpus might have blocked Trump’s extraconstitutional exertions of power, because Boumediene v. Bush assured us that “the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers.” However, in the summer of 2020 the U.S. Supreme Court decided DHS v. Thuraissigiam, which seemed to imply that the processes of ICE and CBP were beyond the reach of habeas corpus just as Trump used those agencies to occupy Portland, Oregon and other localities across the nation.
In response, this article asserts six approaches inspired by Boumediene v. Bush to distinguish Thuraissigiam and to help the Court reassert itself as a check in the balance of power. The analysis below is geared toward drafting immigrant habeas petitions, but its principles may be applied to habeas writs generally. For immigration law is not a proper exception to habeas corpus, which, to quote Thomas Jefferson, exists in a grand manner to ensure that “[t]he military shall be subordinate to the civil power.”
Joshua J. Schroeder,
A Candle in the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus after DHS v. Thuraissigiam,
49 Hastings Const. L.Q. 237
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol49/iss3/3