In an interesting new article in the Green Bag , Stephen Vladeck offers a creative solution to what he (and Justice Scalia, in INS v. St. Cyr ) refer to as the “one-way ratchet” of habeas corpus.
To summarize Vladeck’s point in the briefest of terms: He observes that the fight over congressional tightening of statutory habeas relief is complicated by federal prisoners’s inability to pursue the common law writ of habeas corpus in federal district court or state courts:
Taking Bollman at face value, the common-law writ of habeas corpus is a remedy that the Article III courts are constitutionally powerless to provide. Taking Tarble at face value, such a remedy is also one that state courts are constitutionally powerless to provide against federal officers.
Vladeck’s solution: allow the local D.C. courts to entertain habeas petitions. They aren’t Article III courts subject to Bollman , yet they aren’t state courts subject to Tarble . To do so, he notes, would require the rescission of D.C. Code Section 16-1901(b) , which prohibits the filing of petitions for writs of habeas corpus against federal officers in the local D.C. courts.
But is Section 16-1901(b) really the only roadblock? Unless I’m mistaken, Vladeck completely ignores the problem of assigning habes petition jurisdiction to an Article I tribunal. In Palmore v. United States (1973) , the Supreme Court explained that the local D.C. courts were Article I courts, not Article III courts. As the court recognized in Northern Pipeline Construction v. Marathon Pipe Line Co. (1982) , Congress cannot assign to an Article I court jurisdiction over matters that are “inherently … judicial.”
I am no expert in the nuances of this corner of the law, but my initial reaction is that habeas corpus proceedings are nothing if not “inherently judicial.” As the court recognized in Rasul , habeas corpus is “a writ antecedent to statute … throwing its root deep into the genius of our common law.” Indeed, the Constitution’s protection of the writ of habeas corpus against improper executive or legislative interference seems to make all the clearer the writ’s roots in the courts, and not in legislative or executive tribunals.
Perhaps those more knowledgable on the point can correct me: Have federal habeas petitions ever been the province of executive or legislative tribunals?
Update (6/14/08): Steve Vladeck let me know that the next draft of his paper (not yet published on SSRN) does does with the Article I courts issue.
