President Lincoln's Suspension of Habeas Corpus

Stephen I. Vladeck of the University of Miami School of Law has made available via SSRN a very nice article on President Lincoln's suspension of habeas corpus during the Civil War, entitled "The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act," forthcoming in 80 Temple Law Review. Based on an analysis of another, little-noticed Civil War habeas case, Ex parte Field, 9 F. Cas. 1 (C.C.D. Vt. 1862) (No. 4761), the article explores whether President Lincoln's suspension of the writ was, in effect, legislatively authorized by earlier federal statutes that authorized the executive to call out the militia and to impose martial law to suppress insurrections. It thus suggests there may be a way to avoid the all-or-nothing dichotomy that is usually presented when considering Lincoln's actions and Chief Justice Taney's response in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.).

Civil War buffs who are less interested in all the legal mumbo-jumbo may nonetheless want to give the article a look. It provides nice descriptions of events in Maryland leading to Lincoln's suspension of the writ, Merryman's arrest and suit, Taney's decision and Lincoln's response. You can read the more "historical" parts and skim the rest. Did you know, for example that Merryman later named his son Roger Brooke Taney Merryman? For good measure, you also get some brief discussion about early Congressional statutes delegating to the Executive authority to call out the militia and the "land and naval force[s] of the United States," Andrew Jackson's declaration of martial law in New Orleans in December 1814, Congress' later reimbursement of the fine imposed upon Jackson, and the 1841-42 Dorr War in Rhode Island. Fun stuff!

The abstract of the article is as follows:

In Ex parte Merryman, Chief Justice Taney famously rejected President Lincoln's power to unilaterally suspend the writ of habeas corpus in and around Baltimore at the outset of the U.S. Civil War. According to Taney, only Congress can provide for suspension of the writ, and Congress had not so provided. Just one year later, though, the Vermont federal circuit court held, in Ex parte Field, that the suspension of habeas corpus is necessarily coincident to the imposition of martial law. Because President Lincoln had the statutory authority to impose martial law by virtue of the so-called Militia Acts, Field concluded, Congress had effectively, if not explicitly, given sanction to Lincoln's suspension of habeas in those areas where martial law was validly in force.

This Article attempts a thorough reconstruction of the "Field theory," beginning with the facts of Merryman itself before moving to the pre-Civil War precedents on which the decision in Field relied. As it concludes, the President's authority to impose martial law in crisis situations does in fact derive from the Militia Acts, and there is at least a colorable argument that Baltimore was under martial law at the time Merryman was decided. More importantly for present purposes, though, the Article analyzes the deep and profound questions as to the substantive preconditions for the imposition of martial law through the lens of the modern-day Insurrection Act, concluding that the statutory framework, in current form, does not adequately demarcate the point past which martial law is appropriate. Because Congress has the power to provide for the calling forth of the military to respond to domestic crises, Congress can provide for greater accountability - especially at the end of the next emergency - and, the Article concludes, Congress should do so.

Professor Vladeck, by the way, blogs at Prawsblawg, one of my favorites.