ExParte Merryman & Lincoln

Who did what to whom?

John Merryman was arrested under Lincoln’s orders, who had suspended the writ of habeas corpus. Military refused to produce Merryman in court and his lawyers petitioned for john to be out of detention.

Constitutional issue?

Does the president or congress have the authority to suspend the writ of habeas corpus.

How does Chief Justice Taney resolve the issue? (Holding)

Taney concluded that Congress holds the power to suspend habeas corpus, not the president; and that Lincoln acted unconstitutionally.

Taneys textualist argument

The clause in the Constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive department.

Originalism argument

The right of the subject to the benefit of the writ of habeas corpus, it must be recollected, was one of the great points in controversy in England between arbitrary government and free institutions…no power in England short of that of Parliament can suspend or…the writ of habeas corpus.

Structuralist argument

there are a separation of powers for a reason; congress makes the laws and the president enforces them. The president suspending habeas corpus removes the judicial oversight

Lincolns Response

• The issue of WHEN suspension is clear (the case of rebellion or invasion for public safety), but the the issue of WHO can suspend is actually not clear

• Lets not forget how the very assembling of congress might’ve been prevented due to the blowing up railroad bridges

Why does it matter to Taney that Congress be the institution that suspends the writ?

The fear of executive abuse by the president; if the president can suspend the writ of habeas corpus, then there is no meaningful check on his power. And if the president can suspend this, then what stops him from suspending other rights?

6. Why doesn’t Taney order Merryman’s release if he thinks his detention is illegal?

Taney tries to issue a writ ordering Merryman be brought to court, but the military refuses to comply. He also tried declaring the detention unconstitutional, but the judiciary has no power of enforcement by itself, so Taney wrote an opinion on the presidents’ actions and sent it to congress.

7. How should we understand Lincoln’s actions?

Even though Lincoln’s actions seem justified, he still exceeded his maximum authority.