Reply of Professor David Rudovsky to Professor Stephen I. Vladeck, “The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act”
Volume 80, No. 2, Summer 2007
By David Rudovsky [PDF]

Professor Vladeck’s article addresses from an historical and constitutional perspective the question of whether Congress may indirectly grant to the President the authority to suspend the writ of habeas corpus by enacting legislation that permits the President to impose martial law. Under this theory, even if the Constitution vests Congress, and not the President, with the sole authority to suspend the writ of habeas corpus, contingent legislation regarding martial law would be viewed as congressional action enabling the suspension of the writ of habeas corpus on the ground that the President can validly determine that habeas jurisdiction is inconsistent with a declaration of martial law.

In an intriguing analysis, Professor Vladeck suggests that President Lincoln may have properly suspended habeas corpus in Baltimore in 1861, not for the reasons he gave at the time, but because he properly imposed martial law in Baltimore. Ultimately, I reject that thesis on constitutional and prudential grounds. As I will explain, martial law is not always inconsistent with habeas corpus. Moreover, given the strong constitutional argument that only Congress can suspend the writ of habeas corpus, to permit the suspension by the President upon the imposition of martial law, without concurrent action by Congress, would present very grave dangers to civil liberties.

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