Conservative Progressivism in Immigrant Habeas Court: Why Boumediene v. Bush is the Baseline Constitutional Minimum


Joshua J. Schroeder


This article opens with a presentation of the six baseline holdings of Boumediene v. Bush as an expression of the basic constitutional minimum required under the Suspension Clause for all habeas cases. Then it describes the Circuit split that gave rise to DHS v. Thuraissigiam, which distinguished Boumediene according to the Court’s Conservative Progressive ideology. In Thuraissigiam, this ideology was symbolized by Landon v. Plasencia that favored Mathews v. Eldridge post-racial balancing tests to real justice.

Then this article exposes the reasons why Thuraissigiam should be distinguished in all future cases, as Justice Sotomayor contended, according to its highly individualized, narrow set of circumstances. For as Sotomayor wrote in dissent, Thuraissigiam is “nothing short of a self-imposed injury to the Judiciary, to the separation of powers, and to the values embodied in the promise of the Great Writ.” As such, its rationale should not be followed or repeated, as it may soon fall into the same kind of disrepute as cases like Korematsu, Plessy, and Buck v. Bell.

In an unrelated matter USAID v. Alliance for Open Society, the Court attempted to rewrite the holdings of Boumediene as the opposite of what they were sub silentio. The Court should not be allowed to apply Boumediene as if it held the opposite of what it actually held. So fundamental is the holding of Boumediene to basic liberty in America that if the Court fails to rediscover the baseline holdings of Boumediene for whatever reason, it is possible the nation could founder.

This article concludes that the legal community should resist the recent changes the Court made to immigrant habeas corpus. If the Great Writ can be suspended by the government without a Declaration of War or an actual invasion on U.S. soil, then the U.S. Constitution is overridden. The legitimacy of the nation is at stake and the legal community should not falter in their duty to uphold the U.S. Constitution as a matter of loyalty and integrity regardless of how those in power misbehave or embarrass themselves by misrepresenting Boumediene’s six holdings.

I. Introduction: Boumediene v. Bush as a Vindication of U.S. Principle

Thirteen years ago the U.S. Supreme Court doubted Progressivism in Boumediene v. Bush and instead held to “freedom’s first principles” by expounding the common law of habeas corpus as required under the Suspension Clause. 1 Boumediene required that a minimum of habeas corpus must be applied “as it existed in 1789” for anyone, even in cases of non-citizen enemy combatants arrested for war crimes in foreign countries and held in black sites like Guantanamo Bay. 2 Therefore, the Suspension Clause requires that the Court can apply more protection than existed in 1789, the year the federal courts were first established by law, but it must not fall constitutionally short of the founding application of habeas corpus. 3

Boumediene applied the constitutional minimum of the Writ of Habeas Corpus as it existed in 1789 and created these six holdings: (1) 28 U.S.C. § 2241(e) is completely overruled as a Suspension of the Writ; 4 (2) noncitizen aliens suspected by the Government of committing war crimes have the privilege of the Writ of Habeas Corpus; 5 (3) the Writ does not have a geographic limitation and may be asserted against any custodian the U.S. Courts have jurisdiction over including U.S. military officers that run black sites in foreign countries; 6 (4) prudential bases for dismissing the Writ like exhaustion and federalism are not relevant; 7 (5) the Court has the power to issue orders directing the conditional or unqualified release of prisoners unlawfully detained; 8 and (6) the Court has power to hear exculpatory evidence not presented in the hearing below. 9

If these holdings were applied, rather than merely referring to Boumediene facially without seeking a deeper understanding of its underlying implications, immigrants may not have been so easily abused during the Trump Administration. 10 Immigrant children may not have been separated from their mothers; asylum seekers may not have been kept in Mexico. 11 But ever since Boumediene was decided federal judges have not applied the full force of all six of Boumediene’s holdings to immigrant habeas cases, and as a direct result immigration advocates lost their most important cases to date. 12

II. The Rise of Conservative Progressivism in Immigration Court

Ever since Justice O’Connor graced the bench, it became acceptable for conservative judges to cop Progressivism to support their agendas. 13 As presaged by Landon v. Plasencia, the conservatives of the Court often herald their opinions in the Progressive style as automatically of better quality than those made during any other era. 14 In 2020, the Conservative Progressive dogma given in Landon eventually aided the Thuraissigiam Court’s ironic regression to a state akin to that of the late 19th Century Court. 15

The holdings of Boumediene refuted the Conservative Progressivism expressed in Landon v. Plasencia and it also arguably reversed or precluded the O’Connor plurality in Hamdi v. Rumsfeld. 16 Rather than adopt a Progressive balancing test, Boumediene applied the minimum requirements from the Judiciary Act of 1789 that were long promised in Ex parte Yerger, Felker v. Turpin, INS v. St. Cyr, and Rasul v. Bush to overrule any subsequent law that would effectively repeal the Act of 1789. 17

Boumediene kept this promise by making it binding precedent to consider granting release to noncitizens suspected of terrorism and other war crimes held in Guantanamo Bay pending a common law trial or other legitimate government action. 18

However, in 2016 when a habeas challenge for immigrant asylum seekers arose on appeal in the Third Circuit in Castro v. USDHS, the Court found that Boumediene should control the case, but the Court was misinformed about Boumediene’s holdings. 19 Thus, the Castro Court invented a “two-step inquiry,” falsely representing that it came from Boumediene, and it denied habeas corpus to immigrant asylum seekers that were captured within 100 miles of the border based on Landon v. Plasencia’s Progressive statement of plenary power doctrine in dicta. 20 In Castro the plenary power doctrine defeated the written word of the Suspension Clause affirmed only 8 years earlier in Boumediene. 21

The Castro Court cited extensively to the eugenic era (which it labeled the “finality era” to pull focus away from its racist and misogynist underpinnings now considered illegitimate) and implied that the minimum due process immigrants should expect is found in Chae Chan Ping a.k.a. The Chinese Exclusion Case. 22 It noted that immigrants accordingly may at the most receive only a de novo review of the law, and that the Court must not review the factual determinations of the Executive Office for Immigration Review (EOIR). 23 Thus, the Castro Court flouted Boumediene (while misrepresenting that it was expounding Boumediene) and pushed objectively irrelevant, legally superseded eugenic era case law instead. 24

The Ninth Circuit attempted to respond in Thuraissigiam, by disagreeing with Castro’s application of plenary power doctrine, but then applied the very eugenic era case law that was prescribed under Castro’s novel “two-step inquiry.” 25 Both Castro and Thuraissigiam cited to Boumediene’s requirement that habeas, as it existed in 1789, was the minimum level of habeas review that must be applied. 26

However, both failed to apply the minimum promised in Felker and St. Cyr that was upheld in Boumediene, and instead applied the plenary power doctrine as given in the dicta of Landon v. Plasencia under the veneer of a due process balancing test. 27

The Ninth Circuit, however, expressly cabined its holding to the Suspension Clause and refused to reach analysis of the Due Process Clause. 28 The U.S. Supreme Court, therefore, overstepped its bounds as a Court of last review, when it foreclosed Mr. Thuraissigiam’s due process rights before the lower courts issued a decision about them. 29 Then it compared the common law habeas remedy of release with deportation saying, “the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka.” 30

The Court continued: “That would be the equivalent of the habeas relief Justice Story ordered in a case while riding circuit. He issued a writ requiring the release of a foreign sailor who jumped ship in Boston, but he provided for the sailor to be released into the custody of the master of his ship.” 31 Upon further exploration of Ex parte D’Olivera, the 1813 case Thuraissigiam cited to suggest that habeas release could be equivalent to deportation, it appears that deportation is not the equivalent of what Justice Story ordered at all. 32 For as Thuraissigiam admitted, after considering several cases of the early Republic arising under, by, and through the common law writ as granted in Somerset’s Case in 1772,

[I]t may be that the released petitioners were able to remain in the United States as a collateral consequence of release . . . [because t]hese decisions came at a time when an “open door to the immigrant was the . . . federal policy.” So release may have had the side effect of enabling these individuals to remain in this country . . . . 33

D’Olivera was especially exceptional, because the War of 1812 was raging at the time it was decided; a war which was fought to defend the rights of foreign sailors to permanently jump ship into the United States. 34 Furthermore, Justice Story expressly rejected the idea that deportation could be applied as a condition of release in United States v. The Amistad—even at the forceful request of the foreign sovereign Queen of Spain. 35 This was the result of The Amistad, because there was no equivalent to deportation in federal law prior to the Page Act, as Thuraissigiam expressly stated, and instead the law against illegal extradition was applied. 36

The Ninth Circuit opened up the door to the U.S. Supreme Court’s re-characterization of D’Olivera as a tool to justify the future use of habeas release to effect deportations when it presumed that The Chinese Exclusion Case and other eugenic era case law applied Boumediene’s minimum requirement of habeas as it existed in 1789 for immigrants. 37 The ordinary standard of review available under habeas corpus, tracing back to ancient sources, 38 is de novo review of law and fact. 39 The eugenic era was labeled the “finality era” by the Castro Court emphatically because that era departed from the ordinary standard of habeas review and gave immigrants only de novo review of the law, otherwise denying them any review of the facts. 40

Finality as to determinations of fact made by immigration enforcement officials in the eugenic era was based strictly upon the Chinese Exclusion Act, and other immigration laws, that stripped judicial review of the facts in habeas corpus court that previously existed. 41 Congress’s stripping of the judicial power to review facts in immigration matters, which arguably gave birth to all the present debates over whether standards of judicial review may include review of law, fact, or mixed questions of law and fact, was upheld repeatedly in the eugenic era according to the Court’s expressions of plenary power doctrine. 42 Throughout the eugenic era, determinations of fact made by immigration enforcement officers were inquisitorial and wholly lacked resemblance to the adversarial process of “‘fair play and substantial justice’” that we have come to expect in all forms of adjudication today. 43

Therefore, we know that the eugenic era applied less relief for immigrants than was available in 1789 under the Judiciary Act, because a de novo review of law and fact was applied as an unstated norm in all habeas cases prior to the eugenic era’s emphasis on finality under eugenic immigration statutes that are now repealed. 44 De novo review of law and fact was extended to immigrants numerous times in early U.S. habeas courts, most famously to the German immigrant Eric Bollman, whose case is cited in Boumediene for yet another major deficiency in the way immigrants today are treated in habeas court—because Eric Bollman applied for and was granted unqualified release from unjust imprisonment under the Judiciary Act of 1789, which is still good law today. 45 In Thuraissigiam this relief was not requested, though it was and is available for immigrants under Boumediene, the 1789 Act, and the Suspension Clause. 46

It is also not hard to find cases that granted unqualified release of immigrants into the United States under the Judiciary Act of 1789, which left immigrants free to naturalize in the United States if they chose. 47 Justice James Wilson emphasized from the bench in Collet v. Collet, Henfield’s Case, in the Constitutional Convention, and in his famous Lectures that the only constitutional limitations on immigration were those that limited a naturalized citizen’s ability to serve in Congress and his or her ability to run for President. 48 Otherwise, Wilson convinced his colleagues to “‘open a wide door for immigrants’” as a constitutional imperative. 49

Thuraissigiam decided that James Wilson’s constitutional contributions were “beside the point,” because what mattered to the Court was “the U.S. immigration law, or lack thereof.” 50 While relying upon a perceived lack of progress on immigration law in 1789 as a reason to sidestep the pro-immigrant policy of that era, 51 the Court also paradoxically appeared to require immigrant habeas petitioners to raise cases at or before 1789. 52 As Justice Sotomayor noted in her dissent, Alito’s apparent requirement of providing cases before 1789 is an impossibility that might render the promises of the Court in Boumediene, St. Cyr, and Felker not only meaningless, but absurd. 53

The Thuraissigiam Court’s strategy was straight forward. 54 It took advantage of the popularity of Progressive views on immigration law in the United States to swap out the law of 1789 as represented by Boumediene for immigration norms developed later in our history. 55 The Court knew that it was highly unlikely that liberal Progressives would criticize Justice O’Connor’s use of a Progressive balancing test in Landon v. Placensia where she restated eugenic era plenary power doctrine as a factor that weighed against deciding in favor of immigrants, so they cited to it as if immigrants having “no constitutional rights” is the best, i.e., most liberal, possible outcome an immigrant can expect, rather than considering Boumediene’s “first principles,” which includes the strong holding of Justice Wilson of the first U.S. Supreme Court in Henfield’s Case that “[e]migration is, undoubtedly, one of the natural rights of man.” 56 Thus, instead of engaging with the express holdings in Boumediene that point to the first principles of the Republic, the Court swapped them out, sub silentio, for Progressivism—a political view cherished by many in the United States. 57

In doing so, the Court revealed a basis for review that is still available for immigrants—a request for traditional habeas release under § 14 of the Judiciary Act of 1789. 58 For Thuraissigiam explicitly dismissed habeas corpus review because traditional release was not requested. 59 The Court sought to discourage immigration attorneys from asserting this relief by warning that the application of habeas corpus could result in deportation eventually; but this is no different from applying habeas corpus to criminal prisoners who may be tried for crimes and re-imprisoned after being released by habeas corpus. 60

Habeas corpus may be raised to challenge the Government’s imprisonment or disappearing of a person without a trial, which is exactly what is happening to immigrants in the United States—they are swept up, en masse, and placed in prison without a trial. 61 In the case of a person imprisoned without a trial, the Government may falsely tell a habeas court that ‘this is a dangerous murderer who will just be tried and put back in prison if he is released by you’ in an attempt to convince a habeas judge to unduly deny jurisdiction for habeas relief without looking behind the paper. 62

This argument was unpersuasive in The Amistad, but was resurrected in Thuraissigiam when it cited D’Olivera for the idea that immigrants may be re-imprisoned and deported even if they are released through habeas as a reason for judges to unduly deny habeas corpus jurisdiction altogether. 63

In the face of Thuraissigiam’s strong warnings that deportations may eventually occur if immigration attorneys seek habeas corpus for their clients, immigration attorneys need to stand by the law. 64 They need to request traditional release under all six of Boumediene’s holdings to distinguish Thuraissigiam and preserve their habeas cases. 65 They should rely on Boumediene’s analysis of the laws of 1789 to restore the law to what it actually was for the first several decades of our nation’s existence—an open door to immigrants. 66

While Thuraissigiam distinguished Boumediene on the law, the 2020 Court began to rewrite Boumediene sub silentio in the dicta of unrelated matters. 67 For example, USAID v. Alliance for Open Society gave a reading of Boumediene that is perfectly opposite of what Boumediene actually held. 68 The statements about Boumediene in Alliance are entirely dicta—while dicta can be harmful to future cases, it is not final and it is not the law. 69

This is especially so when the Court’s dicta is obviously false, and provably absurd. 70 While Boumediene struck down arbitrary feudal geographic limitations on the Writ—represented by the English case Rex v. Cowle—so that it runs potentially anywhere in the world where people are imprisoned under the color of the authority of the United States, 71 the Alliance Court restated the feudal law from Cowle, misrepresenting the precedent as if it were an undisputed law affirmed by Boumediene, writing,

First, it is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution. Plaintiffs do not dispute that fundamental principle. 72

Justice Breyer’s dissent confirmed that the Court’s novel reinterpretation of Boumediene to create this so called fundamental principle “is not the law.” 73 Breyer opined that, “The exhaustive review of our precedents that we conducted in Boumediene v. Bush, pointed to the opposite conclusion.” 74 Then he repeated forcefully, “we rejected the position that the majority propounds today.” 75 The Court rejected it, not only in Boumediene generally, but also specifically in a previous decision rendered in 2013 in the same case. 76

The Alliance Court did not consider overruling Boumediene, nor could it. 77 However, the Court severely confounded the holdings of Boumediene in such a way that it may make it easier for future Courts to overrule or rewrite Boumediene sub silentio in future cases. 78 Examples that show Alliance’s “fundamental principle” is not a fundamental principle are easily found, and cut strongly against its holding. 79

Most alarmingly, the Alliance Court ignored the fact that in 2008, the same year Boumediene was decided to extend habeas writs to U.S. custodians running a black site in Cuba, a foreign country, the House of Lords disagreed with Boumediene in Ex parte Bancoult and reaffirmed England’s 1774 holding in Campbell v. Hall; the King’s Bench in Campbell extended the geographic rule in Cowle to exclude colonists no matter what color or creed throughout the British Empire from enjoying what were known as the Rights of the Englishman and thus it became one of the causes of the Revolutionary War. 80 Founder James Wilson distinguished the American Experiment from that of England on this issue when he wrote,

Britain seems determined to merit and to perpetuate, in political as well as geographical accuracy, the description, by which it was marked many centuries ago—

divisos toto orbe Britannos.

What a very different spirit animates and pervades her American sons! Indeed it is proper that it should do so. The insulated policy of the British nation would ill befit the expansive genius of our institutions, as the hills, the ponds, and the rivulets, which are scattered over their island, would adequately represent the mountains, and rivers, and lakes of the United States. “In the new world”—I speak now from one of the finest writers of Britain—“in the new world nature seems to have carried on her operations with a bolder hand, and to have distinguished the features of the country by a peculiar magnificence. The mountains of America are much superior in height to those in the other divisions of the globe. From those lofty mountains descend rivers proportionably large. Its lakes are no less conspicuous for grandeur, than its mountains and rivers.” We imitate, for we ought to imitate, the operations of nature; and the features of our policy, like those of our country, are distinguished by a peculiar magnificence.

In a former lecture, we have seen how easily the essential rights of citizenship can be acquired in the United States, and in every state of the Union. Let us now see, how liberally the doors are thrown open for admission to the publick trusts and honours, as well as to the private rights and privileges, of our country. 81

It is strange to observe the Court attempt to secure Donald Trump’s promise of American greatness through anti-immigrant policies, while abandoning this real source of greatness bestowed upon us by the immigrant founder James Wilson for the protection of immigrants. 82 Alliance’s so called “fundamental principle” was of British origin; Alliance’s application of the feudal British rule from Bancoult, Campbell, and Cowle as if it were American was doubly absurd because that law by its own terms was not made for the world at large, but should exist only in England according to its small, island politics under Virgil’s ancient maxim presented by Wilson above—divisos toto orbe Britannos. 83

III. Conclusion: Why Boumediene Cannot Legitimately Be Overruled

If the holdings of Boumediene are overruled, rewritten, or otherwise permanently swapped out sub silentio in future cases, the nation that was the United States may pass into history. 84 For access to habeas corpus was long regarded by our ancestors as the difference between freedom and tyranny. 85 What could emerge as a result of the Court’s recent attacks on Boumediene is unclear, for as Sotomayor wrote of Thuraissigiam, “Where its logic must stop . . . is hard to say.” 86

For Hobbes predicted as much, that America would one day fall under the sway of the starry eyed sentimentality of Conservative Progressivism, which is an oxymoron. 87 For just after the Court penned Thuraissigiam as one among the most important, final group of cases in the 2019 term, President Trump stated that “the Supreme Court gave the president of the United States powers that nobody thought the president had,” and sent elite ICE Troops to Portland, Oregon to kidnap and harass U.S. Citizen protesters, legal observers, and members of the press. 88 The promises of Felker and St. Cyr, that were made law in Boumediene, were transgressed in Thuraissigiam, which was the only case in the 2019 term that could have effectively put a check on the President’s Power to quell protesters by using ICE and CBP as domestic police forces. 89

While Thuraissigiam only distinguished Boumediene, any Court that departs from the precepts of Boumediene does a major injury to itself and to the nation. 90 Thuraissigiam harmed itself by destroying its own jurisdiction for no reason but to administer an injustice. 91 Along these lines, Thuraissigiam may be characterized as an advisory statement that can be disregarded in the future, in favor of equal rights and equal freedoms as required by the U.S. Constitution. 92

For the equal rights of immigrants were defended by America even while England occupied Washington, D.C. and burned down the first White House, the Library of Congress, and the first meetinghouses of Congress. 93 Equal rights mean more to us than preserving federal government buildings—for they can be rebuilt. 94 They mean more than the Capitol Building itself, because that building is only sacred in so much as it houses our democracy, which barely survived Trump’s siege of January 6, 2021. 95

Equal rights were defended by the immigrant founder James Wilson on behalf of immigrants in Henfield’s Case and Collet v. Collet; its spirit was maintained in Thomas Jefferson’s proclamation in defense of the kidnapped officers of the U.S.S. Chesapeake; and finally when Congress declared war on England in 1812. 96 It is baffling to see how these beginnings laid with the sacred sacrifices of life and limb by our ancestors were so openly besmirched by the jurists of the Thuraissigiam Court. 97

As to their absurd reasoning, in which “the Cry for Liberty, and the reverse Disposition for the exercise of oppressive Power over others agree,” Phillis Wheatley must hold the final say. 98 We may yet follow her example “to convince them of the strange Absurdity of their Conduct whose Words and Actions are so diametrically, opposite.” 99 For Thuraissigiam is particularly threatening; if we are not careful the despicableness of opinions such as Thuraissigiam alone, like a manmade Leviathan, can swallow the nation whole. 100

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