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Trump, Lincoln and a ‘Habeas Corpus Threat’
Prof. John Yoo replies to William Galston.
In “Trump’s Habeas Corpus Threat” (Politics & Ideas, May 14), William A. Galston criticizes the idea that President Donald Trump could unilaterally suspend habeas corpus to deport illegal aliens faster. No president has ever done so without Congress, Mr. Galston writes, citing President Abraham Lincoln’s Civil War detention of Confederate prisoners.
Article I of the Constitution declares that “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.” While the right of habeas corpus helps protect all others—it demands that the government justify a detention’s lawfulness before a court—the Framers recognized that the exigencies of war and rebellion could justify its suspension. Mr. Galston argues that the clause, though written in the passive tense, empowers only Congress, not the president.
At the start of the Civil War, Lincoln unilaterally suspended habeas corpus, in addition to raising a military, launching offensive operations against the South and withdrawing money from the Treasury to pay for it. When Chief Justice Roger Taney ordered the administration to release John Merryman, an alleged Maryland rebel, it refused. Mr. Galston claims, however, that Lincoln “acknowledged that Congress had the last word on his decision.” The president asked the Legislature to bless his actions after the fact in his famous July 4, 1861, message.
Constitutionalism
Amicus Brief: Hon. William P. Barr and Hon. Michael B. Mukasey in Support of Petitioners
Former AGs Barr and Mukasey Cite Civitas in a SCOTUS Brief
Rational Judicial Review: Constitutions as Power-sharing Agreements, Secession, and the Problem of Dred Scott
Judicial review and originalism serve as valuable commitment mechanisms to enforce future compliance with a political bargain.
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State Courts Can’t Run Foreign Policy
Suncor is also a golden opportunity for the justices to stop local officials from interfering with an industry critical to foreign and national-security policy.
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What Happiness Ought We Pursue? Natural Rights and the Declaration of Independence
Freedom points beyond itself to a moral life of deliberate conformity to the moral laws of nature and the will of God.
Pursuing the Right to the Pursuit of Happiness in the Twenty-First Century
The Declaration is not a historical argument — it is a philosophical one, a claim about what human nature requires, not merely about what was once practiced or understood.
The Supreme Court Was Right to Ban Race-Based Gerrymandering
As America celebrates its semiquincentennial, it is time to return to the principles of the Declaration of Independence and the Constitution, which dictate that citizens should be represented in their government as individuals, rather than as members of pre-selected groups based on race or ethnicity.
