Only Congress Has the Power to Suspend Habeas Corpus
The White House Is Upset It Keeps Losing in Court
Over the past few months, I’ve used the word “alarming” to describe various actions of the Trump administration. Whether it’s denying appropriations approved by Congress, unilaterally imposing tariffs, deporting individuals in the United States with legal status, or issuing orders that should otherwise keep them from being removed, it’s all alarming. I need a new adjective to describe some of the actions we’ve seen or that have been threatened.
Case in point. Last week, the White House deputy chief of staff for policy, Stephen Miller, said that the administration is considering suspending habeas corpus for migrants. Trump has apparently been involved in these discussions. Earlier this week, Homeland Security Secretary Kristi Noem said conditions meet the constitutional circumstances for a suspension of habeas corpus.
What is habeas corpus? It’s a critical due process protection. If someone is detained, habeas corpus provides that individual with the ability to challenge the legality of the detention. Habeas corpus protects individuals from arbitrary arrest and the abuse of power.
The Trump administration has recently found that its arrest and detention of individuals, including those in the United States legally, hasn’t been warmly received by the courts. Most recently, the case Rümeysa Öztürk, a Turkish national who attends Tufts University, was detained by Immigration and Customs Enforcement simply because she wrote an opinion piece sympathetic to Palestine and critical of Israel. Öztürk prevailed in courts on a habeas petition last week and has been released. Mohsen Mahawi, a student at Columbia University and a Palestinian national, was released last month after successfully challenging his detention and deportation. Just this week, a Georgetown professor, Badar Khan Suri, detained in March, was ordered to be released from custody.
What does the Constitution say about habeas corpus? Not much. Article I, Section 9, Clause 2 of the Constitution states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Now, it’s important to keep in mind that Article I pertains to the Legislative Branch, not the Executive Branch. The implication is that suspending habeas corpus is a legislative function. However, the suspension of habeas has occurred on only a handful of occasions–the Civil War and Reconstruction are the most notable examples. There’s also the suspension of habeas in the Philippines in 1905, Hawaii after the attack on Pearl Harbor in 1941, and the Global War on Terrorism (GWoT), but those are examples for another day because they’re a little more complex.1
We’re going to focus on the Civil War example for a moment. In April 1861, the same month the Civil War began, President Lincoln suspended habeas corpus in Maryland. Although Maryland remained in the Union, antiwar elected officials planned to sabotage a railroad supply line. A month later, Chief Justice Roger Taney, sitting on a circuit court in Baltimore, issued an opinion in ex parte Merryman in which he wrote that Lincoln’s suspension of habeas corpus was an unconstitutional encroachment on a legislative power.2
“I can see no ground whatever for supposing that the President, in any emergency, or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen, except in aid of the judicial power,” Taney wrote. “He certainly does not faithfully execute the laws, if he takes upon himself the legislative power of suspending’ the writ of habeas corpus–and the judicial power also, by arresting- and imprisoning a person without due process of law.”
Taney rested on various facts in his opinion. He mentioned that President Jefferson supplied Congress with information to judge for themselves whether Vice President Burr’s conspiracy to break off from the United States to form a new nation (known as the “Burr conspiracy”) rose to the level of the suspension of habeas corpus. Jefferson revealed in September 1810 that he believed a president could take extraordinary measures in extreme circumstances, such as when the “laws of necessity, of self-preservation, of saving our country when in danger” may call for it. However, Jefferson also noted that Congress must retroactively apply what a president does or hold him accountable, if necessary.
Jefferson’s thoughts on the subject are probably the weakest point Taney raised to justify his opinion. His best points come via English common law, Justice Joseph Story, and Chief Justice John Marshall. On the former, keep in mind that English common law is the foundation of the American legal system.
Although Magna Carta–the document that guaranteed freedoms for English citizens signed by King John at Runnymede in 125–doesn’t explicitly use the term “habeas corpus,” the foundation is in the text. Magna Carta states, “No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.” Sir William Blackstone called habeas corpus “the most celebrated writ in English law.”
Importantly, for our purposes, Blackstone noted that the authority to suspend habeas corpus rested with Parliament, not the Crown. This was related to the passage of the Habeas Corpus Act of 1679, which strengthened habeas protections for English citizens. Blackstone wrote, “For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing.”
Taney quoted Justice Joseph Story’s Commentaries on the Constitution, in which Story wrote, “It is obvious, that cases of a peculiar emergency may arise, which may justify, nay even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes, because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by congress since the establishment of the constitution. It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body.”
Finally, Marshall was Taney’s immediate predecessor and issued opinions in ex parte Bollman and ex parte Startwout from which Taney excerpted. In Bollman and Startwout, Marshall clearly indicated that the suspension of habeas corpus is a question for Congress to decide. “If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so,” wrote Marshall. “That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this Court can only see its duty, and must obey the laws.”
Back to Lincoln. Some important things to keep in mind. Congress operated differently in the 19th century compared to today. Legislators would recess for months before returning to Washington, DC. The 37th Congress was out of session when Lincoln suspended habeas corpus and when Taney’s opinion in Merryman was issued. I alluded to this earlier, but Lincoln ignored Taney’s ruling. Granted, Congress did try to authorize Lincoln’s suspension of habeas corpus when it reconvened in July 1861. The proposed joint resolution approving the suspension is available here. The joint resolution was, however, blocked. The effort was revived near the end of the 37th Congress, and the Habeas Corpus Suspension Act was passed and signed into law by Lincoln on March 3, 1863. It remained in effect until President Johnson terminated the suspension on December 1, 1865.3
Habeas was also suspended as part of the Civil Rights Act of 1871 because of violence caused by the Ku Klux Klan. In this case, Congress acted before President Grant suspended habeas. Congress passed the Civil Rights Act in April 1871. In December 1871, Grant issued a proclamation suspending habeas corpus in parts of South Carolina.
I write all of this to say that Miller’s comments just don’t meet reality. Nor do the comments of Senate Judiciary Committee Chairman Chuck Grassley (R-IA), who told Punchbowl, “I’m not going to comment unless I hear it from him, but the president does have the authority under the Constitution to [suspend habeas corpus].” Grassley also said, “Abraham Lincoln did it.” These statements ignore critical facts about habeas corpus and the placement of habeas corpus in Article I of the Constitution, as well as the common law history of the Great Writ.
Only Congress can decide when to suspend habeas corpus. No president has the sole authority to do so.
In the cases of the Philippines and Hawaii, both were territories, and Congress handed the question of habeas corpus to the governors. See here and here. Related to GWoT, Congress passed the Military Commissions Act of 2006 to suspend habeas for detainees, but the Supreme Court struck that down in the 2008 case, Boumediene v. Bush.
A couple of quick notes. It wasn’t unusual for Supreme Court justices to sit on circuit courts, but ex parte Merryman wasn’t a Supreme Court holding. Also, Taney isn’t exactly a sympathetic character. He wrote the Supreme Court’s awful opinion in Dred Scott. Some of Taney’s actions related to Merryman, such as holding General George Cadwalader in contempt for refusing to free John Merryman, made it easier for Lincoln to ignore the holding.
For the history flunkies who, for some idiotic reason, believe the Confederacy was the last bastion of liberty, yeah, the Confederacy also suspended habeas corpus.
Very well done. Thank you so much for this historical article. I believe you made the case that congress, not the president, has the power to suspend or reinstate habeas corpus.