Minnesota Law Review

State Habeas Relief for Federal Extrajudicial Detainees

Nearly 150 years ago, the United States Supreme Court rebuffed efforts by the Wisconsin Supreme Court to free an abolitionist and an unhappy teenaged soldier from federal confinement. Since that point in history, it has been widely understood that state courts lack the power to grant habeas relief to individuals held in federal custody, even if those individuals are being detained without review, approval, or participation of any court. This Article contends that it is time to restore state courts’ ability to act as a primary protector of individuals’ freedom. The Article first tells the story of a long-forgotten time when state courts routinely awarded habeas relief to federal extrajudicial detainees. The Article then argues that the Court erred when it held that state courts may never come to federal prisoners’ aid. Although scholars today uniformly reject the Court’s constitutional rationale for declaring federal detainees wholly beyond state courts’ reach, they attempt to rationalize the Court’s holding on other grounds. Specifically, scholars believe that Congress preempted the state habeas remedy for federal prisoners when it authorized federal courts to grant federal prisoners habeas relief in the Judiciary Act of 1789. This Article contends that Congress has neither explicitly nor implicitly preempted state courts’ power to award the habeas remedy to persons extrajudicially held in federal confinement. In fact, the historical record strongly suggests that the Constitution’s Suspension Clause was intended to guarantee both individuals and the states that, absent extraordinary circumstances, federal leaders could not strip state courts of their power to provide habeas relief to federal extrajudicial detainees. This Article contends that it is time to honor the Constitution’s promise.

:: View PDF

News & Events

  • Fall Submissions Open – Headnotes

    The Minnesota Law Review: Headnotes fall submissions period is open. For more information, please visit our submissions page. Share this: on Twitter on Facebook on Google+

  • Vol. 97 Piece Quoted in Mother Jones Article

    A recent Mother Jones article predicting how the Roberts Court would resolve King v. Burwell draws on How Business Fares in the Supreme Court from Volume 97. You can read the article here. Share this: on Twitter on Facebook on Google+

  • Welcome to De Novo

    For nearly one hundred years, the Minnesota Law Review has been a leader amongst academic legal publications. When Professor Henry J. Fletcher launched the journal in 1917, his goal was simple. It was to “contribute a little something to the systematic growth of the whole law.” Since then, the Law [...]

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]


cforms contact form by delicious:days