Last month, President Donald Trump issued an executive order prohibiting the entry of refugees or visa holders from seven Middle Eastern nations. It went into effect while some foreign nationals were in transit, thus they arrived in a different America than the one they had expected. Among these were two Iraqis, detained at Kennedy Airport on January 27, 2017. Their lawyers filed writs of habeas corpus the following morning, hoping to have their clients released. They were not alone. According to the director of the International Refugee Assistance Project, Becca Heller, “we’ve gotten reports of people being detained all over the country…. They’re literally pouring in by the minute.” This executive order has raised, for many Americans, concerns about the role of executive power in a political system that reveres checks and balances, how this will affect refugees from war torn regions, and about our nation’s core identity as a country of immigrants.
Although our twenty-first century context is much different, the implementation of habeas corpus to rescue a detainee from state or federal custody harkens back to the enslaved people who were detained under the Fugitive Slave Law of 1850. This law was intended to protect slaveholders’ property interests and reinforce a pro-slavery interpretation of the U.S. Constitution. It mandated that in fugitive slave cases where the alleged fugitive was taken into custody in a free state, normal judicial processes were not in force—there was no opportunity for appeal, no jury was present, the alleged owner (i.e. “slave claimant”) was not required to have a warrant, and the appointed slave commissioner had significant leeway in determining what constituted adequate evidence of enslavement. Even more controversially, the act stated that the commissioner was entitled to a ten-dollar fee if he found for the claimant, and only a five-dollar fee if he found for the alleged fugitive. It was a system that encouraged corruption.
The full article can be viewed on the Journal of the Civil War Era blog, Muster.