The Power to Suspend Habeas Corpus: An Answer from the Arguments Surrounding Ex Parte Merryman

44 Pages Posted: 23 May 2007


The question of which political branch has the power to suspend the privilege of the writ of habeas corpus is a classic constitutional separation of powers question with important consequences for civil liberties. However, the one case squarely addressing the question, Chief Justice Roger B. Taney's opinion in Ex Parte Merryman concerning Lincoln's suspension of the writ during the Civil War, is cited more often as a confrontation of personal wills rather than a valid legal analysis. Although history tends to assume that Taney's opinion was correct as a matter of law, while Lincoln's refusal to acknowledge the opinion was correct as a matter of necessity, the question itself remains unsettled. However, a correct answer to the question is vitally important, as recent events in the war on terror threaten to undermine civil liberties.

This article attempts to determine which branch of government has the power to suspend the writ of habeas corpus through an in-depth analysis of the legal arguments surrounding Ex Parte Merryman. In conducting this analysis, it first provides a detailed recitation of the facts surrounding Taney's opinion in Merryman and Lincoln's disregard of that opinion. It then examines the framing and ratification of the Suspension Clause, and the strengths and weaknesses of various legal theories regarding which branch possesses the suspension power, paying special attention to the theories put forth by legal commentators of the period regarding the question. Ultimately, the article concludes that the power to suspend habeas corpus can only reside with Congress, and that the President has no independent power, even in time of emergency, to suspend. Finally, the article examines the relevance of the answer to the question, and its implications today.

Keywords: Lincoln, Taney, Merryman, habeas corpus, Suspension Clause

Suggested Citation

Jackson, Jeffrey D., The Power to Suspend Habeas Corpus: An Answer from the Arguments Surrounding Ex Parte Merryman. University of Baltimore Law Review, Vol. 34, pp. 11-54, 2004, Available at SSRN:

Jeffrey D. Jackson (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States

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