Frustrated by federal courts intervening to stop the deportations of allegedly illegal migrants, President Trump’s Deputy Chief of Staff Stephen Miller said on May 9 that the White House was “actively looking at” suspending the writ of habeas corpus—a court order that mandates law enforcement produce for the court both the person detained and the justification for the individual’s detention. According to Miller, “the Constitution is clear” that the writ can be “suspended in a time of invasion,” and it is within the president’s authority to do so.
Miller’s claim will be challenged on two grounds. First, although the Constitution does provide for the possible suspension of the writ of habeas corpus in Article I, is it the president’s prerogative to do so? Second, under the terms of the Constitution, suspension is limited to “Cases of Rebellion or Invasion” and when “the public Safety may require it.” The question here is whether the Trump administration’s claim that the United States has been “invaded” by the mass of illegal immigrants crossing the American borders in recent years is correct—and, then, who makes the final call on whether that is the case?
Constitutional scholars have been quick to say that the president does not have that power—it’s an Article I authority delegated to Congress—and it will be up to the Supreme Court to determine whether the United States has been invaded and the public’s safety is at risk.
One might wish things were that cut and dried. But Abraham Lincoln’s suspension of the writ during the Civil War, and his subsequent refusal to abide by the Chief Justice Roger Taney’s denial of that authority, leaves us with a precedent that this White House might fully, if disingenuously, use to its advantage.
Initially worried about Southern sympathizers in Maryland who were threatening military supply lines moving through the state to the nation’s capital, in April of 1861, Lincoln unilaterally suspended the writ in Maryland along the route between Philadelphia and the District of Columbia. Lincoln acted while Congress was out of session, and he made no effort to call it immediately back into session, which was his prerogative to do so. In short, Lincoln was at this point acting on his own. Over the following year, Lincoln expanded the suspension incrementally to other areas of importance to the war effort until, in the fall of 1862, he extended the suspension to the whole of the country until the end of the war. In the end, thousands were detained and held without trial.
Soon after Lincoln had suspended habeas corpus in Maryland, federal troops arrested Maryland planter John Merryman on suspicion of being involved in secessionist activities and held him at Fort McHenry without a warrant. Merryman’s lawyer petitioned the federal circuit court for Merryman’s release. Acting as the circuit judge, Chief Justice Roger Taney issued a writ of habeas corpus demanding that Merryman be brought before the court and the fort’s commanding officer give an account for why Merryman was being held. The officer replied that he was acting under Lincoln’s suspension of the writ, and would not comply. In Ex Parte Merryman, Taney issued an opinion that the president had no such authority, that the relevant article in the Constitution pertaining to suspension “is devoted to the Legislative Department,” and that it was the president’s obligation to execute the laws, not create or ignore them.
Lincoln was surely aware that in suspending the writ, he was exposing an underlying tension built into the Constitution itself, between the rule of law and the necessary power to preserve that rule in a time of crisis.
Lincoln waited to respond until Congress met in a special session that July. In his written July 4 address to the Congress, he argued that Article I, section 9 of the Constitution is not explicit regarding who could exercise the power of suspension; on this, “the Constitution itself is silent.” Nor does every clause in section 9 pertain to Congress and its powers. Moreover, Lincoln noted, since Congress is not always in session and the executive is, the authority to deal immediately with a crisis like a rebellion or an invasion would seem to rest most logically with the president. Finally, the president’s duties require him not just to execute a law but the laws. “Are all the laws,” Lincoln said, “but one to go unexecuted, and the Government itself go to pieces lest that one be violated?” Even if it could be argued that he had overstepped in exercising the power to suspend the writ of habeas corpus, “would not the [president’s] official oath—to preserve, protect and defend the Constitution—be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”
That said, Lincoln did call Congress back into a special session to deal with the rebellion and the steps he had taken in the immediate aftermath of the South’s secession, including suspending the writ of habeas corpus. While not conceding that what he had done in suspending the writ was anything but legal, he nevertheless left open the possibility that Congress might wish to pass legislation on the matter, with Lincoln submitting that this was “entirely” to be left “to the better judgment of Congress.” (And, indeed, Congress did eventually pass legislation in March 1863 regulating the president’s authority.)
Lincoln’s nod to Congress, of course, is something we have yet to see as a default position from the current president. Still, for two years, Lincoln was in the case of the suspension of the writ acting unilaterally and in defiance of an opinion by the chief justice. Lincoln’s willingness to ignore Taney’s opinion and release Merryman rested on his assessment of the seriousness of the threat the country faced and his broader duty to deal with the necessity at hand.
Lincoln was surely aware that in suspending the writ, and ignoring Taney, he was exposing an underlying tension built into the Constitution itself, between the rule of law and the necessary power to preserve that rule in a time of crisis. The power of preservation has to exist somewhere, and Lincoln obviously thought it rested—at least initially and principally—with the person of the chief executive.
If there were to be any check on such sweeping presidential discretion, Lincoln said it would ultimately come from public opinion. “If [the president] uses the power justly, the same people will probably justify him; if he abuses it, he is in their hands, to be dealt with by all the modes they have reserved to themselves in the constitution,” said Lincoln in a letter responding to queries about the suspension.
Note that Lincoln’s response is distinct from, or more accurately, a modification of John Locke’s discussion of executive prerogative, in which an executive facing an extraordinary situation will act without the cover of law or even against standing law in order to preserve the state. According to Locke, this assertion of power resides outside the existing constitutional framework and, as such, is ultimately judged by the public accepting or not what the executive has done. The danger is that an executive, having had his actions approved, or more likely benignly accepted, will more readily act outside the law with justifications for doing so that are less and less tied to true necessities.
Lincoln does not ignore the role of public opinion, but he directs it back into and through the constitutional order. Not only does Lincoln take care to ground his suspension of the writ on a reading of the text of the Constitution, but he also suggests in his letter that there are constitutional modalities for judging and even modifying what he has done.
Elections, congressional control of the purse, and impeachments are the most obvious mechanisms Lincoln had in mind. Indeed, one reason Lincoln was so insistent that there be elections in 1864—despite the war still going on and his own decline in popularity—was that it reinforced the idea that the Constitution was still up, running, and controlling. He was willing to wield great power but careful to have it seen as much as possible as not being arbitrary.
But what are we to make of the situation today, when the president will not be up for reelection, the congressional majority is largely uninterested in protecting its authority to check an executive, and the impeachment process—designed to hold presidents accountable for serious misbehavior—has seemingly gone the way of the dodo bird? While about six in ten Americans think Trump’s exercise of power has “gone too far,” only about a quarter of Republicans think that. Combined with administration rhetoric that regularly justifies its actions more on policy grounds than a careful articulation of what the law or the Constitution permits, the danger is a new presidential precedent that will see few to no bounds in how the office exercises power.
Most broadly, the Trump White House’s threat to suspend the writ of habeas corpus is a reminder, or more aptly put, a corrective to the view that the Constitution’s system of checks and balances is sufficient for creating sound and responsible governance in the absence of a civic culture alert to, and upset by, abuses of power. It should remind Americans that they must be far more attentive to the character of those they elect to the White House and Congress if they want stable and responsible leadership.
