The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act
Volume 80, No. 2, Summer 2007
By Stephen I. Vladeck [PDF]

Since the day it was handed down in 1861, Chief Justice Taney’s infamous solo opinion in Ex parte Merryman has polarized constitutional law scholars, both as to the capacity in which it was issued and, more importantly, as to its substance. In Merryman, Taney decisively rejected President Lincoln’s unilateral suspension of the writ of habeas corpus in and around Baltimore at the outset of the Civil War, concluding that the Constitution only authorized Congress to suspend the writ and that no emergency, no matter how existential, could justify subversion of such a vital constitutional precept. Lincoln famously (and rhetorically) responded to Taney in his July 4, 1861 address to Congress, asking “are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” And Congress, whose authority Lincoln had usurped–according to Taney, anyway–eventually authorized the suspension, implicitly at first via the August 1861 Ratification Act, and then explicitly through the March 1863 Habeas Corpus Act, enacted on the last day of the Thirty-seventh Congress.

Merryman has long divided constitutional law scholars because of the strength of the arguments on both sides. Taney had the Constitution’s text and structure in his corner, along with dicta from an important early Supreme Court decision by Chief Justice Marshall suggesting that the power to suspend the writ rested entirely with the legislature. But Lincoln had rhetoric, exigency, and principle behind him. With Congress not in session, with Confederate sympathizers attacking Northern troops passing through Baltimore to reinforce the capital, with the Maryland legislature set to meet to consider secession from the Union, and with only a small federal force in and around Washington City with the “enemy”–the Confederacy– just across the Potomac River, the physical preservation of the federal government, if not the very existence of the Nation, was threatened by the lawlessness in Baltimore.

Merryman has also polarized constitutional law scholars because of the implications of the two arguments. Those who generally disavow broad theories of inherent presidential power find themselves in the uncomfortable position of being forced to side with Chief Justice Taney, notwithstanding both (1) the historical discredit to which he has been subjected for his majority opinion in Dred Scott v. Sanford; and (2) the extent to which his motives in Merryman itself were, arguably, impure. In addition, for those who are less troubled by such unilateral executive action, Lincoln’s (and Attorney General Edward Bates’s) response to Merryman nevertheless begs the question whether the suspension of the writ was pursuant to President Lincoln’s textual constitutional authority under Article II, or whether it was extraconstitutional–borne out of, and justified by, necessity.

Merryman has therefore come to be seen as an all-or-nothing proposition. Either President Lincoln had inherent authority (be it constitutional or extraconstitutional) to suspend the writ, or he did not. And if he did not, the suspension was therefore unconstitutional–and Taney was right. But what if some other source of legislative authority for the suspension existed? Is it possible that Taney and Lincoln were both right and, at the same time, both wrong? One judge thought so.

In Ex parte Field, an obscure and almost completely overlooked 1862 decision by the U.S. Circuit Court for the District of Vermont, U.S. District Judge David A. Smalley analyzed President Lincoln’s authority to suspend the writ as being necessarily incident to his authority to impose martial law:

[T]he president has the power, in the present military exigencies of the country, to proclaim martial law, and, as a necessary consequence thereof, the suspension of the writ of habeas corpus in the case of military arrests. It must be evident to all, that martial law and the privilege of that writ are wholly incompatible with each other.

According to Judge Smalley, so long as the President had authority to impose martial law, he had authority to suspend the privilege of the writ wherever martial law was in force. Moreover, Smalley traced Lincoln’s authority to impose martial law not to Article II or to any theory of extraconstitutional presidential power; rather, Smalley found such authority in a series of early statutes providing for the calling forth of the militia and the federal armed forces to suppress insurrection. At least where martial law has been lawfully imposed, Field suggests that subsequent (and coincident) suspensions of the writ of habeas corpus are, in fact, authorized by Congress and are therefore constitutional. In short, Field suggests not that the principle behind Chief Justice Taney’s decision in Merryman–i.e., that unilateral executive suspension of habeas is unconstitutional–was wrong, but that it might not have applied to Merryman.

This Article is devoted to exploring the argument at the heart of Judge Smalley’s opinion in Field–that suspensions of the writ of habeas corpus are properly coincident with the imposition of martial law–and its modern implications, if true. After tracing the background of Merryman in Part II, Part III summarizes Field and concludes by considering whether President Lincoln’s imposition of martial law provides an alternative justification for the legality of his suspension of habeas corpus in and around Baltimore in early 1861, a justification largely–if not entirely–neglected by previous scholarship.

Thus, whether martial law justified President Lincoln’s actions begs the altogether separate questions of whether Lincoln had authority to impose martial law at the outset of the Civil War, and, if so, whether that authority derived from the Calling Forth Clause’s grant of authority to “suppress Insurrections” or to “execute the Laws of the Union.” After summarizing the Supreme Court’s rather terse and undeveloped jurisprudence concerning martial law, Part IV concludes that, even by 1861, the Court had established the authority of the President to impose martial law pursuant to the Calling Forth Act of 1795 and the Insurrection Act of 1807 (and their progeny). Although President Lincoln, acting in pursuance of such authority, validly proclaimed martial law in 1862, Part IV suggests that he also effectively imposed martial law in and around Baltimore in early 1861.

Recognizing that President Lincoln had authority at the outset of the Civil War to impose martial law, however, only begs a far more serious question, to which Part V is devoted: whether, and to what extent, the statutory framework interposes substantive limitations on presidential declarations of martial law. For, as others have suggested in critiquing an earlier form of this argument, “[i]f Congress has so conferred this power on the President, it has done no more to clarify the circumstances under which the power might be exercised.” As I summarize in Part V, meaningful debates in American history over potential “triggers” for martial law have been few and far between. Indeed, the two most prominent examples–Congress’s debate over whether to refund then-General Andrew Jackson’s contempt fine for imprisoning a judge in conjunction with the imposition of martial law during the Battle of New Orleans in 1815, and the public and judicial debate over the situation in Rhode Island occasioned by Dorr’s Rebellion in the early 1840s–predated the Civil War. As such, their contemporary relevance is questionable, at best.

Thus, whereas the Field theory sidesteps both the heavy-handedness of Taney’s slanted opinion in Merryman and the potentially limitless unilateral power claimed by Lincoln and Bates, it leaves unresolved a question of perhaps greater contemporary significance: does the current statutory framework relating to the imposition of martial law, known generally as the “Insurrection Act,” provide either (1) substantive triggers for the imposition of military rule, or (2) criteria by which such authority can meaningfully be reviewed?

As I suggest, the answers to these questions are unclear, at best, and may in fact serve to undermine, rather than substantiate, the Field theory. Otherwise, Field would suggest that the privilege of the writ of habeas corpus can be suspended both in situations not expressly contemplated by the Constitution, and without express authorization by Congress. Part V concludes that Field may well be correct when Congress is acting to suppress insurrections or repel invasions–the situations contemplated by the Suspension Clause–but that it simply cannot be true that the imposition of martial law in any other situation would, of itself, effect a constitutionally valid suspension of habeas.

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