The Soft Suspension of Habeas Corpus
ICE is ignoring habeas corpus orders so routinely that a federal judge is threatening criminal contempt. New filings from Minnesota show what a de facto suspension of due process looks like.
ICE’s aggressive enforcement actions in Minneapolis and elsewhere across the country has prompted an expected surge in lawsuits. We are learning a lot about the inner workings of this current wave of immigration enforcement through these lawsuits, as well as how seriously the administration responds to legal challenges. New court filings from a lawsuit in Minnesota raise major concerns about our government’s commitment to due process and, as you will see, basic math.
Let’s start with some background to the case I’m talking about. Juan Tobay Robles is an Ecuadorian national who entered the country as a child and who was arrested during ICE’s Operation Metro Surge in Minneapolis on January 8 (the day after Renee Good was killed). His lawyers challenged his detention through what is a called a habeas corpus petition or habeas petition—basically, a request that a judge review the lawfulness of a detention and, if found unlawful, order the person released.
You may have heard of this in the news recently, because earlier this month ProPublica found that habeas lawsuits are at historic highs right now, coinciding with ICE’s deluge of enforcement across the country. That makes sense; I found a similar spike in habeas cases at the start of the COVID-19 pandemic as ICE’s detention centers became dangerous Petri dishes for infection.
But habeas corpus is not a new idea. Habeas corpus is one of the oldest concepts in the Western legal tradition, a principle that legal scholars typically trace back to the Magna Carta in 1215 and which has become generalized, in various forms, in constitutions around the world, including the U.S. Constitution. At the core of habeas corpus is the idea that people who are arrested and detained by their government should have the opportunity to appear in court and challenge their detention. It is a foundational principle of due process and one of our most basic, sacred checks on expansive police powers and authoritarian overreach.1 No king and, in a democracy, no president should have the unlimited ability to lock people up without justification and in violation of the law. Instead, courts may issue a writ of habeas corpus that compels the state to (literally) habeas corpus (i.e., “produce the body”) to the court so that that person may speak to charges against them.
In one of my favorite historical asides, if you’ve ever wondered why we have sheriffs in the United States, the answer ties directly to this question of habeas corpus. In those days of Old England, when bodies were ordered “produced” to the court, who exactly was tasked with this “producing”? Why—the shire-reeve, the sheriff, himself, of course! Who still to this day are “officers of the court” in charge of “bodies” through the management of county jails—counties being yet another of those peculiar legal forms adopted in our former-colony-turned-nation.
Believe it or not, there’s an important reason why I’m going into the backstory here, and it’s pretty simple: habeas corpus is so central to American democracies that its suspension is seen as coinciding with the suspension of democracy itself.
The line between democracy and authoritarian rule is often drawn when a ruler refuses to allow people to even contest their own arrest and detention—and it’s a line that the Trump administration has considered, and is likely still considering, in order to reduce the appropriate and necessary legal safeguards to unchecked deportation. This has been part of the play all along. The reason for the unhinged and untrue rhetoric of immigration as an “invasion” and a public safety issue (despite all evidence to the contrary) is to justify this audacious move. When I give you the full sentence in the Constitution where habeas corpus is referenced, you’ll see the concern: Article 1, Section 9 states that “The 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.” Stephen Miller would love nothing more than to suspend all due process for immigrants despite the fact ICE still seems incapable of, and uninterested in, meaningfully distinguishing between people in the country lawfully or unlawfully, or between citizens and non-citizens.
But President Trump may not need to suspend habeas corpus officially if his enforcement agencies and U.S. attorneys are able to suspend habeas corpus in practice. And this appears to be exactly what they are doing.
Returning finally to the case of Juan Tobay Robles illustrates this point. Just yesterday, the judge in this case, Judge Patrick J. Schiltz, a Bush appointee, took U.S. Attorney Daniel Rosen to the woodshed over his embarrassing response to the court’s concerns that the administration is refusing to comply with habeas corpus orders.
Here’s what happened. In the Juan T.R. case, Juan’s attorneys filed a habeas petition. The government didn’t even file a response, crickets from the Trump administration. Admittedly, they are overwhelmed and having a hard time keeping up with all of the lawsuits—but too bad, really, because if you’re going to invade an American city and kill two citizens, you had better be prepared for lawsuits. With no response from the government, Judge Schiltz ordered the government to give Juan a bond hearing (just a hearing, not even grant a bond) or release him within seven days. The government did nothing again. Then Judge Schiltz ordered the agency to either release Juan or ICE’s Acting Director Todd Lyons needed to show up in court himself. Finally, the agency release Juan.
In Judge Schiltz’s order on January 28, the judge expressed concerns that DHS is not complying with habeas corpus orders—effectively suspending habeas corpus, as I’ve tried to contextualize above. Along with this, Judge Schiltz included a quickly-compiled list of examples to reinforce the validity of this concern, including 96 violations spread across 74 cases.
I will not put this as delicately as the judge. Attorney Rosen’s response was as petty as it was incompetent. Instead of fixing the underlying issue, Rosen wasted even more of his staff’s scarce time to nit-pick Judge Schiltz’s legitimate examples of the agency’s many violations. Rosen said that his staff chose a “statistically strong sample” of the 74 cases in question and attempted a quibbling little rebuttal to points that the judge had made. In addition to Rosen being simply factually wrong—Judge Schiltz’s even more detailed analysis found that while, as he previously admitted, there may be some errors in his cases, the general thrust was wholly undiminished—his claim to have provided a statistically strong sample deserves its own rebuttal.
What was the “statistically strong sample” that Attorney Rosen claims to have provided? Of the 74 cases, Rosen’s staff chose the first twelve cases on the list. The first 12. Of 74. Mr. Rosen: I may not be entirely qualified to assess your competence as a legal professional, but I can certainly speak to your incompetence in the area of basic math. Choosing the first 12 of 74 cases is not a “statistically strong sample”; it is, at best, a non-random convenience sample that doesn’t get you in the same state, much less the same ballpark, as what qualifies as a statistically significant sample—and dropping a phrase you clearly don’t understand into official communications with a court to pad your shoddy work would qualify as a math crime if there was such a thing. It’s not strong, it’s not statistical—it’s a sample. So you were 33% correct, which is still failing in most statistics classes (even with grade inflation these days).
Thankfully, Judge Schiltz was unpersuaded by Rosen’s sloppy pseudo-math. Judge Schiltz hit back with an even longer list of 113 additional orders that ICE had violated in 77 additional cases. One hopes that Mr. Rosen will spend his energy ensuring that his client complies with these orders instead of sniveling over edge cases.
Judge Schiltz dropped the hammer in the final two paragraphs. This is worth reproducing in full:
“If anything is “beyond the pale,” it is ICE’s continued violation of the orders of this Court. Increasingly, this Court has had to resort to using the threat of civil contempt to force ICE to comply with orders. The Court is not aware of another occasion in the history of the United States in which a federal court has had to threaten contempt-again and again and again-to force the United States government to comply with court orders. This Court will continue to do whatever is required to protect the rule of law, including, if necessary, moving to the use of criminal contempt. One way or another, ICE will comply with this Court’s orders.”
And remember: those “court orders” that take multiple threats from judges to force compliance? Those are habeas corpus cases. Judges know what’s up. Failure to comply with court orders is a mantra of the Trump administration and Trump himself. But failure to comply with habeas corpus, one of the oldest and most foundational concepts in the Western legal tradition—that’s another level that should alarm more people. And what should be alarming isn’t just whether the Trump administration will try to officially suspend habeas corpus for immigration purposes, it’s whether the Trump administration already is de facto suspending habeas corpus by strategically overwhelming the courts and relying on a dwindling cadre of acolytes who can’t do basic math, much less meaningfully reflect on their role in undermining our most sacred of legal principles.
Read the whole order here.
For those who read footnotes, I will add that it can indeed be a check on state power, a fuller theoretical history of habeas corpus reveals a more complicated relationship between state power and civil rights that is not as easy to reduce to being simply a check on power. That’s a longer discussion.
Really smart piece. I learned a ton. Keep going!