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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.
Supreme Court tariff ruling should end complaints that justices favor Trump
John Yoo writes on the Supreme Court’s decision on President Trump’s tariff case.
Major Questions Doctrine and Its Bipartisan History
Administrative law is important because it provides the framework for so many significant fights about policy. Unfortunately, it is also often misunderstood.
Trump’s Tariff Tantrum
Trump leaps from the frying pan into the fire in the aftermath of Learning Resources v. Trump.
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