Suspension as an Emergency Power

Article excerpt

ARTICLE CONTENTS

INTRODUCTION

I. DEBATING WHAT IT MEANS TO SUSPEND THE PRIVILEGE

II. THE CONCEPTION OF SUSPENSION AT THE FOUNDING
  A. The English Origins of the Great Writ and the Suspension Power
  B. Pre-Convention American Suspensions
  C. The Suspension Clause in the Constitutional Convention and
     Ratification Debates
  D. The Suspension Proposed in Response to the Burr Conspiracy

III. THE CIVIL WAR AND RECONSTRUCTION: INVOKING THE "MOST
     EXTRAORDINARY POWER"

  A. The First Suspension Under the U.S. Constitution: Suspending the
     Writ During the Civil War
     1. The 1863 Act
     2. Post-Script: Executive Action Pursuant to the 1863 Act and the
        Act's Amending Legislation

  B. Suspension During Reconstruction: Putting Down the Klan in South
     Carolina

IV. UNDERSTANDING SUSPENSION AS AN EMERGENCY POWER
  A. Reading the Suspension Clause in Context
  B. Giving Meaning to the Suspension Power
  C. Mapping the Suspension Clause Within the Constitution

V. SUSPENSION AND THE SEPARATION OF POWERS

CONCLUSION

[A] suspension of the writ.., is just about the most stupendously significant act that the Congress of the United States can take[.] (1)

INTRODUCTION

Justice Jackson famously observed that the Suspension Clause (2) is the Constitution's only "express provision for exercise of extraordinary authority because of a crisis." (3) Historically speaking, the suspension power, though rarely invoked, has been both appreciated and wielded as an emergency power of tremendous consequence for addressing the breakdown of law and order and steering our constitutional ship back on course when it falters. Nonetheless, much of what the Suspension Clause protects during times of peace and permits during times of crisis remains shrouded in mystery. Current circumstances--namely, the attacks of September 11, 2001, and the ensuing war on terrorism--have spurred renewed interest in the Suspension Clause and, specifically, what a suspension actually allows the political branches to do in addressing the crisis at hand.

Recent legislation enacted as part of the war on terrorism has led to several important Supreme Court decisions supplying some additional clues as to the Suspension Clause's meaning, (4) including two this past Term, (5) along with important new scholarly commentary. (6) But the meaning of the Suspension Clause and its application to the modern problems posed by the war on terrorism remain largely unsettled. In particular, the connection between the suspension authority and the scope of executive power remains the subject of considerable debate. How much power can a valid suspension vest in the executive to address an emergency? If, for example, Congress had suspended the writ of habeas corpus in the immediate wake of September 11, (7) could that legislation have empowered the executive, consistent with the Constitution, to arrest and detain a broader class of persons than those who would be subject to arrest in the absence of the suspension? That is, would a suspension authorize the executive to arrest and detain individuals on suspicion that they might engage in future acts of terrorism? This is a crucial question. Its resolution not only would inform the current debates over the propriety of what the government has done to date in the war on terrorism in the absence of a suspension, but it also says much about what the government could do in response to a future terrorist attack if Congress were in fact to take the "grave action" of suspending the privilege of the writ of habeas corpus in its aftermath. (8)

Two schools of thought have emerged on this matter. On one view, the Suspension Clause recognizes an extraordinary emergency power, one that does not simply remove a judicial remedy but "suspends" the rights that find meaning and protection in the Great Writ. (9) It follows from this account that there can be no objection "under the Constitution or any other provision of our law, to the lawfulness of a detention pursuant to a valid suspension of the habeas remedy. …