YOU HAVE THE BODY

I walked into a coffee shop to find Socrates and Steve engaged in an intense debate; intense, I say, because Steve was turning red with rage, a typical reaction to Socrates. I wasn’t sure I wanted to join them inasmuch as Steve looked as though he was prepared to resort to fisticuffs. But the question was promptly removed from my discretion when Socrates spotted me at the counter making my order. “Jacob,” he said. “You’ve come at good time. Join us when you get your coffee.”

Noticing that Steve’s face was still red, and that he didn’t look up to greet me, I asked, “Is it safe? It looks like you’ve driven Steve to the edge of sanity.”

Socrates laughed. “He hasn’t attacked me yet.”

“Yeah, well I’m getting close,” was Steve’s response.

“Hold up there, Steve,” I said. “Maybe I can give you a hand after I get my coffee.”

Steve snorted, giving indication that he doubted that I would be much help. He was right, of course, as far as helping him in an argument with Socrates. But I hoped I could defuse the situation so that Steve wouldn’t pop a blood vessel.

My order was simple, having ordered a coffee with cream, so I was able to join them at the table quickly. “Okay, Socrates,” I said as I sat down. “How are you disturbing the peace today?”

“Steve, here, thinks that the President can suspend the writ of habeas corpus,” Socrates replied.

“Pardon my ignorance,” I said, “but remind me what the writ of habeas corpus is.”

Steve laughed with disdain. Socrates only smiled, and said, “It’s a court order directing that a person in custody be brought before the court to determine the lawfulness of his detention. It’s a process we inherited from England.” [1]

“And I’m saying that the Constitution provides that the writ can be suspended in certain emergencies,” Steve said.

“And I’ll ask you again,” Socrates replied, “Doesn’t the Constitution specify what those emergencies are?”

“Yes it does,” Steve said. “It says that the writ may be suspended ‘when in Cases of Rebellion or Invasion the public Safety may require it.’” [2]  

“Well, are we experiencing a rebellion or invasion?”

“We’re certainly experiencing an invasion. There are any number of illegal immigrants in our country.”

“Do you think that’s what the Framers of the Constitution meant by an invasion?”

“It must be one of the things they meant.”

“Just so we’re clear,” Socrates said, “you’re saying that an influx of illegal aliens are included in what the Framers meant by an invasion.”

“Absolutely!” 

“But how could that be if there was no such thing as an illegal alien at the time that provision of the Constitution was enacted?”

“Come again?”

“There wasn’t such a thing as an illegal alien when the Constitution was first adopted, was there?”

At that, Steve took on a smug expression. “Oh really? What about the Alien and Sedition Acts?”

“What about them?”

“You said that there was no such thing as an illegal alien when the Constitution was adopted. But the Alien and Sedition Acts were enacted during the Adams administration in 1798, and John Adams was the second president. They must have had an idea of illegal aliens to pass the Alien and Sedition Acts.”

“Well, you do know that the Alien and Sedition Acts consisted of four statutes?”

“That’s right.”

“And one of the statutes was the Naturalization Act of 1798?” [3] 

“That’s right.”

“But that act extended the residency requirement for naturalization from five to fourteen years, am I right?”

“That’s true.”

“So, that act had nothing to do with immigration, but naturalization.”

“Okay, so what?”

“So, if aliens had a residency requirement to become a citizen, they had to be present in the United States for the required period of time. And there was nothing in the statute that mentioned entering the United States illegally.”

“True, but there were three other statutes that were enacted under the Alien and Sedition Acts.”

“Okay, let’s look at the Sedition Act. [4] Do you recall what that was about?” 

“Of course. The Sedition Act criminalized the defaming of the federal government, the president, or Congress. That should still be the law today.”

“You’ve lost my vote,” said Socrates. “But the point is that the Sedition Act had nothing to do with immigration, illegal or otherwise.” 

“That’s right. But with the other two statutes I think you’re going to have a harder time making your case.” 

“How so?” 

“Well, there was the Alien Friends Act, which authorized the president to order any alien out of the country when he deemed it necessary for the public safety.” [5] 

“True. But in order for them to be removed out of the country didn’t they have to be in the country to begin with?” 

“Naturally.” 

“And was there any indication in the statute that the people to be removed were illegally in the country to begin with?” 

“No, the statute didn’t deal with that.” 

“But isn’t our discussion about illegal immigrants? Isn’t an illegal immigrant someone who enters the country illegally?” 

“Yes.” 

“So, the Alien Friends Act is irrelevant. And isn’t the remaining statute, the Alien Enemies Act, which is still effective law unlike the others, equally irrelevant?” [6] 

“Why do you say that?”

“Doesn’t the Alien Enemies Act deal with citizens of countries that the United States is at war with?”

“Not just at war, Socrates, but also when there is an ‘invasion or predatory incursion.’ We are certainly being invaded by illegal immigrants.”

“Well, now you’re begging the question,” Socrates said. “But in point of fact, doesn’t the statute require that the ‘invasion or predatory incursion’ be ‘perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government….’”

“Okay, what’s your point?” 

“Are we being invaded by another nation or government?”

“We’re certainly being invaded by citizens of other countries.” 

“That’s not the requirement. The requirement is that the invasion be by a foreign nation or government. It must be an act by a foreign country, not just some of its citizens.” 

At this point Steve was beginning to turn purple. “The statute still authorizes removal of those citizens.” 

“Indeed. But, again, to be removed don’t they have to already be in the country?” 

“Of course they do.” 

“But there’s nothing in the statute that indicates they were illegally in the country to begin with, is there?” 

“No. But I don’t see your point.” 

“So, the Alien Enemies Act is equally irrelevant. And the question at hand is whether the criteria for the suspension of habeas corpus is met in the present circumstances.” 

“And I say we’re being invaded.” 

“But how can you legitimately say that illegal immigration constitutes an invasion for purposes of the Suspension Clause when there was no such thing as illegal immigration when the Constitution was adopted?”

“Alright, fine. But it doesn’t matter. Article III courts, the ordinary federal courts, aren’t allowed to be involved in immigration cases.” [7] 

Socrates laughed. “If that were true, what would be the point of suspending habeas corpus? If the Article III courts aren’t allowed to be involved in immigration cases, and it’s immigration cases you’re worried about, wouldn’t that mean you already have what you want? Why do you need to go further?” 

“The courts don’t seem to realize the limits of their authority. They get involved with immigration cases even though Congress has specifically prohibited it.” 

“Where are you getting this from?” 

“What? That the courts are to stay away from immigration cases and let the executive branch handle it? It’s the law.”

“You’re sure that the courts don’t have any appellate function in immigration cases?” [8]

“Aren’t you familiar with Department of Homeland Security v. Thuraissigiam, a Supreme Court case?” [9] 

“Tell me about it.” 

“They laid out the applicable law in that case. If an illegal alien is caught trying to cross the border, the alien gets a hearing before an immigration judge, who, by the way, is part of the Executive Branch. The alien can even apply for asylum. And he can even appeal the decision of the immigration judge to the Board of Immigration Appeals.”

“And don’t forget,” Socrates said, “that the alien is generally entitled afterward to a review by the Court of Appeals.”

“What’s your point?” 

“You said that Congress enacted a law that says that Article III courts are to keep their hands off of immigration cases. But the Court of Appeals is an Article III court, isn’t it?”

“Yes, but the courts are specifically not authorized to review whether an alien is actually ineligible to be admitted to the country or is entitled to relief from removal.” 

“But isn’t habeas corpus designed for the purpose of challenging the applicant’s custody status?”

“Yes.”

“But didn’t the Supreme Court in the case we’re talking about point out that Thuraissigiam wasn’t challenging his custody status?” 

“That’s right.” 

“So, the writ of habeas corpus wouldn’t apply in that case anyway. So how does it help your position?”

At this point Steve started raising his voice. “See here, Socrates! No matter what you say, the president gets to decide when the privilege of the writ of habeas corpus should be suspended. So, all your blather is meaningless.”

“The president gets to decide, not Congress? Are you sure about that?”

“Yes I’m sure. Abraham Lincoln suspended the writ during the Civil War.”

“But that met with significant opposition, didn’t it? So much so that Lincoln eventually acquiesced and obtained congressional approval?”

“Nonetheless, he did it.”

“Even a great man like Abraham Lincoln can make mistakes. And had he read Justice Joseph Story’s Commentaries on the Constitution, it would have been hard for him to come away with the belief that the power to suspend the writ rested with him rather than Congress, am I right?” [10]  

“That was Joseph Story’s opinion.”

“Alright, and were you aware that Chief Justice John Marshall said in passing, in the case of Ex parte Bollman, that it is for the legislature to decide if the writ of habeas corpus should be suspended?” [11]

“If he said it in passing, then it isn’t valid precedent.”

“But John Marshall was a Founding Father. Wouldn’t you think he had a good idea what was intended by constitutional provisions?”

“He wasn’t infallible.”

“But where is the Suspension Clause in the Constitution?” 

“Article I.” [12]  

“Right you are. And does Article I vest power in Congress or the president?”

At this point Steve started shaking. He stood up and kicked his chair over, startling everyone in the coffee shop, particularly me being the closest to him. He stormed out without saying another word.

I started to laugh. “Good job, Socrates,” I said.

“That was unexpected,” Socrates said calmly.

“I take it that Article I vests power in Congress,” I ventured.

“Indeed it does,” Socrates replied. 

 

--Jack Quirk