presidents, war, and *statutes*

marty.lederman at marty.lederman at
Mon Dec 19 08:01:10 PST 2005

Thanks -- that's been my understanding, too.  What's odd is that no one ever seems to talk about the statute.  As far as I know, for instance, it's not mentioned in Lincoln's orders:

What, precisely, did Lincoln mean when he authorized Scott to "suspend" the writ?  That sounds fairly metaphysical.  I assume what it means is not that he was authorizing Scott to take a pen to the Constitution, to erase words from the U.S. Public Laws, or to ceremoniously take a paper "writ" and "suspend" it, but that that he was authorizing Scott to ignore judicial orders, directed at the Executive, issued pursuant to valid statute (the Merryman example).  Using the verb "suspend" is an awfully strange way of putting this.  Obviously, Lincoln was intending to invoke (and wrap himself in) the Suspension Clause.  If Congress were to "suspend" habeas, it would presumably enact a statute (temporarily) repealing statutory habeas rights.  But in what way can an Executive "suspend" a law?  He can decide to ignore the law (and judicial orders issued pursuant to it), but suspend?

-------------- Original message -------------- 
From: Mark Tushnet <tushnet at> 
I could be wrong, but I have always understood it to have been a suspension of sec. 2241, which has been on the books since the beginning.  (Indeed, I actually have some difficulty understanding the concept of "constitutional habeas," in light of ordinary understandings that the jurisdiction of the federal courts is entirely statutory.  But, exploring that difficulty would take us very far afield.)

marty.lederman at wrote:

Mark:  Was Lincoln's (temporary) suspension of habeas, pending Congress's return, a suspension of a habeas statute?  I assume it was; but most accounts I've seen either treat it as a suspension of constitutional habeas, or simply don't mention any preexisting statutes. 
-------------- Original message -------------- 
From: Mark Tushnet <tushnet at> 
The closest Lincoln came, I think, was in the suspension of habeas corpus pending Congress's return.  Here's a slightly edited version of a footnote I've written dealing with that decision:  "Lincoln provided at least an alternative defense of his suspension of habeas corpus, that the Constitution authorized him to suspend the writ until it was possible to obtain a suspension from Congress, as it was not in the early days of the Civil War.  Congress was not in session during that period, and I do not that Lincoln was under a constitutional duty to ensure that Congress reconvene at the earliest possible moment.  Or, perhaps more precisely:  In April Lincoln called for Congress to....... 
Steve:  Does Kleinerman discuss whether any of Lincoln's emergency actions actually violated statutes?  If so, did Lincoln acknowledge that he was acting contra legem, and, if so, did he use the Commander-in-Chief Clause as justification?  Was the suspension of habeas inconsistent with extant habeas statutes?  Did the Emancipation Proclamation in effect violate existing Fugitive Slave Acts, or other statutes?  

As I've always understood it (not necessarily accurately), Lincoln was acting in an "emergency" situation, while Congress was not convened; that Congress, when it returned to D.C., actually ratified, by statute, virtually all of Lincoln's most controversial actions; and, most importantly, that Lincoln conceded that if Congress thought Lincoln had gone astray, Lincoln would follow any statutory directives, and would subordinate his own judgments as Commander-in-Chief to the superseding decisions of the legislature.  

Can anyone tell me if that account is accurate?  If so, does it remain the case that Lincoln was violating pre-existing statutes "in the interim," while awaiting congressional decision?

More broadly, can anyone identify any cases prior to this Admininistration in which a President has invoked his Commander-in-Chief power as justification for actually acting contra legem?  

Thanks in advance.
-------------- Original message -------------- 
From: "Stephen L. Wasby" <wasb at> 

Readers of this list might be interested in an article in the newest issue of Perspectives on Politics (Vol. 3, #4, Dec 2005) from American Political Science Association:  Denjamin A. Kleinerman, "Lincoln's Example: Executive Power and the Survival of Constitutionalism," 801-816, an effort
to bring a different perspective to the present debate about constitutions, executive prerogative, and war time "necessities."
    Steve Wasby

Subject: presidents, war, and constitutions
From: "Stephen L. Wasby" <wasb at>
Date: Mon, 19 Dec 2005 13:14:14 +0000
To: Conlawprof at

To post, send message to Conlawprof at
To subscribe, unsubscribe, change options, or get password, see

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...

More information about the Conlawprof mailing list