The Constitution’s Suspension Clause (Art. I, Section 9, cl. 2) limits when the writ of habeas corpus can be suspended. But the Constitution doesn’t seem to grant the federal government power to suspend the writ in the first place. Why not? And why limit a power never given?

In an Aug. 17 Wall Street Journal piece, constitutional law professor Nicholas Quinn Rosenkrantz infers that Congress has the sole suspension authority from the structure of the constitutional text. He writes:

“Since the Suspension Clause appears in Article I of the Constitution, which is predominately about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.”

He concludes that when President Abraham Lincoln suspended the writ, he probably intruded on Congress’s prerogative, and thereby exceeded his constitutional authority. (Professor Rosenkrantz also gives Lincoln credit for trying to cure the constitutional defect.)

This is largely correct, but the organization of the text is not the sole reason. When read in legal and historical context, the language of the Constitutiondoes give the federal government authority to suspend the writ.

Here’s why: At the time of the Founding, suspending habeas was a recognized incident of war powers—repeatedly resorted to both by Parliament and by the Continental Congress. When the Constitution granted Congress authority to declare war, this grant carried with it the incidental power to suspend the writ. (The Necessary and Proper Clause confirmed this.)  For more on that, see my book The Original Constitution: What It Actually Said and Meant, pp. 106-07.

The President’s power to serve as commander-in-chief also carried with it incidental authority to suspend the writ. (The Necessary and Proper Clause doesn’t apply to the President, but for other reasons the doctrine of incidental powers does.) However, the President’s suspension authority was limited to the actual theater of war. See p. 134.

Thus, Professor Rosenkranz was correct to conclude that Lincoln exceeded this authority by suspending the writ over large areas outside the war theater.

Rob Natelson

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