Jack Balkin and Jonathan Hafetz have thoughts here and here.
There are a number of complicated questions to unpack:
1. Does the Constitution guarantee some minimum amount of habeas protection? Justice Scalia says no in his dissent in INS v. St. Cyr. Others say yes.
2. If it does require some minimum habeas protection, what does the constitutional minimum look like? The 1789 version of common law habeas that applied in the King’s Bench? Or something more robust?
3. Does constitutional habeas, if it exists, extend to aliens?
4. When can Congress suspend constitutional habeas and for how long?
5. Relatedly, does due process inform what constitutes “constitutional habeas” and, at the same time, limit Congress’s suspension power?
Balkin avoids addressing due process and equal protection arguments against the MCA, noting they require much more heavy lifting than a blog post allows. I’m undeterred by his common sense, however, and below I raise a set of preliminary questions about these claims: