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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
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Religious Exemptions?: What the Free Exercise Clause Means
A conversation among three religious liberty scholars on the Free Exercise Clause’s original meaning.
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The American Revolutions of 1776
America's founding was animated by both the spirit of liberty and the spirit of religion — a philosophical and practical achievement worth understanding and attempting to recover today.
The Progressive Presidency Envelops American Politics
One does not need to revisit the drastic consequences that ensued from COVID-19 policies to be reminded of the failures and mistakes of the progressive constitutional framework that issued them.
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The American Constitution: Covenant or Curse?
A review of Yuval Levin's "American Covenant" and Erwin Chemerinsky's "No Democracy Lasts Forever."
The Declaration’s Reconciliation of Populists and Constitutionalists
On the 4th of July, we can all recall that the reconciliation of popular sovereignty and constitutionalism is the defining Cause of America.
