The title of this post is the headline of this op-ed on Philly.com today by Professor Eric Freedman. The decision he’s criticizing is Castro v. U.S. Dep’t of Homeland Security, which I discussed here.
Regardless of how Congress chooses to label these mothers and children, they are still entitled to a judicial forum. The constitutional protection of habeas corpus forbids Congress from denying people on our soil access to the courts by legislatively announcing that they are not here. Permitting such legerdemain would leave the writ “subject to manipulation by those whose power it is designed to restrain.”