Vladeck on The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia

The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia is a new essay by Stepehn I. Vladeck, American University Washington College of Law. It will appear in Green Bag 2d (Summer 2008). Here's the abstract:

In his dissent in INS v. St. Cyr, Justice Scalia raised what remains perhaps the most perplexing question concerning Congress's power over the habeas corpus jurisdiction of the federal courts: if Congress never had to create a statutory cause of action for habeas corpus in the first place, how could a statute purporting to divest the federal courts of jurisdiction over certain habeas petitions violate the Constitution's Suspension Clause? As Scalia suggested, "[i]f . . . the writ could not be suspended within the meaning of the Suspension Clause until Congress affirmatively provided for habeas by statute, then surely Congress may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet."

In drawing parallels between the Supreme Court's mandamus and habeas jurisprudence, this short essay explains how Justice Scalia's one-way ratchet is actually a misnomer, and is instead the result of a trap Congress unknowingly set for itself. To give away the punch-line, a series of early nineteenth-century cases concerning the common-law writ of mandamus illustrates a point lost on conventional courts and commentators alike: the constitutional problem raised by habeas-stripping statutes does not arise from their constriction of the jurisdiction of the Article III courts. The problem is that a separate (and completely neglected) Act of Congress constrains the power of the one court that would otherwise be left to hear a federal detainee's habeas petition absent Article III review: the Superior Court of the District of Columbia. And although the analysis contained herein might strike the reader as pedantic (if not entirely semantic), such a conclusion has significant implications for sorting out the competing viewpoints in the continuing debate over Congress's power to restrict access to the writ of habeas corpus.