Seth Barrett Tillman (Maynooth University Department of Law) has posted Lincoln and Merryman on SSRN. Here is the (refreshingly short) abstract:
My goal is to displace the several factual and legal myths associated with Ex Parte Merryman, and to explain the practical modern relevance of this project.
This short but very insightful essay continues the discussion on this blog and elsewhere about Lincoln and judicial supremacy. From the introduction:
Lincoln sent an order to military commanders granting discretion to suspend habeas. That order meant, as Lincoln understood it, at least, that the military had authority to arrest, seize, and detain individuals suspected of treasonous activity, and if the detained person brought judicial proceedings in regard to the arrest etc, that the military could put in a plea or defense of proper authorization by the President under the Suspension Clause. …
Did Lincoln also intend that his order was a direction to military commanders to ignore or defy judicial orders granting habeas should the courts determine that Lincoln had no authority to suspend habeas? In other words, did Lincoln intend that his order instructed or directed the military to ignore or defy court orders granting habeas prior to Congress’s reviewing the matter? We simply do not know, and one reason we do not know is that Taney never issued any order in Merryman to release the prisoner.
And from the core of the argument:
When discussing Dred Scott, Lincoln plainly stated that he would not resist (and others should not resist) the Supreme Court’s decision as it applied to the parties. As to Merryman and other civil war habeas cases, before anyone ascribes to Lincoln even thinking that it was appropriate to ignore or defy a proper judicial order, much less that he actually granted express authority to ignore or defy such an order, you need something much, much more than Lincoln’s ambiguous order to suspend habeas. You need facts. Perhaps there is a Merryman power permitting the President (in certain circumstances) to ignore court orders, perhaps there is not. It is an interesting constitutional question which has occupied great minds, and I don’t pretend to know the answer to it or to other questions relating to departmentalism or the ultimate limits of Executive Branch power during emergencies. But I do know this. There is nothing in Merryman indicating that Lincoln believed he had any such power. And some of those who have written otherwise have done so on the basis that Taney issued an order in Merryman directing the President to release Merryman, but which the President ignored or defied. That position is plainly wrong: Taney never issued any such order.
As to what Lincoln intended in the time period following his suspension order and following Merryman, that is, did his inaction indicate that be believed he had legal authority to ignore or defy judicial orders? We will never know the answer to this question, and we can never know for the simple reason that no such order was issued in Merryman directed at the President to do anything or to refrain from anything. For all I know, there may have been other civil war habeas actions where a court issued a judicial order granting habeas. But I am reasonably confident that Lincoln was not a named party to any such case, just as he was not a party to Merryman. As a non-party, any failure by the Government to free such a prevailing party, i.e., a prisoner, in a habeas action cannot be ascribed to Lincoln. As a result, Lincoln could not be subject to contempt for violating any such order, nor could Lincoln be made a defendant in any subsequent damages action. Where (other) Executive Branch officers refuse to obey a judicial order directed to them, i.e., an order granting habeas, Lincoln could be said to be responsible in the political sense – the President is responsible to supervise Executive Branch subordinates and his failure to do so subjects him to impeachment and being turned out of office by the people at the next regular election. But such an abstract failure to supervise (under the Take Care Clause) does not establish that President Lincoln believed he could legally authorize his subordinates to ignore or defy judicial orders, much less establish that Lincoln did so either in Merryman or in relation to any other civil war case.
Posted at 6:53 AM