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.