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Habeas Corpus and Obamacare

Huh?  How can those two things be related?

Georgetown Law Professor Nicholas Rosenkranz has this op-ed in the WSJ contrasting President Obama's suspension of the Obamacare's employer mandate with President Lincoln's suspension of the writ of habeas corpus in the Civil War.

Article I, section 9, second clause of the Constitution says, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

This is a prohibition, not an authorization.  Who does have the power to suspend the writ when the substantive requirement is met (as it surely was in 1861)?  There was a great constitutional controversy during the first two years of the Civil War as to whether the President could suspend the writ by executive order or whether it required an act of Congress.  Congress finally got around to it in 1863 and mooted that controversy.

There was a constitutional showdown over this between President Lincoln and his old nemesis, Chief Justice Roger Taney, author of the Dred Scott decision.  A Confederate sympathizer named Merryman was charged with treason and held by the military in Fort McHenry, the defense of which had moved lawyer Francis Scott Key to poetry a half century earlier.
Taney, as circuit justice, issued a writ of habeas corpus for Merryman, and the commander refused, with the support of the President.  What could Taney do about it?  Nothing but protest.

After [the marshal's return] was read, the chief justice said, that the marshal had the power to summon the posse comitatus to aid him in seizing and bringing before the court, the party named in the attachment, who would, when so brought in, be liable to punishment by fine and imprisonment; but where, as in this case, the power refusing obedience was so notoriously superior to any the marshal could command, he held that officer excused from doing anything more than he had done.
Hamilton argued in Federalist 78 that the judiciary was the least dangerous branch.  "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."  Yes, but only in the rarest moments of history has the executive had the political capacity to refuse.  Lincoln did in the Civil War.  FDR threatened to in the darkest days of World War II.  Truman couldn't in the steel seizure case, Nixon couldn't in the Watergate matter, and Clinton couldn't in the Paula Jones suit.

Only in the moments of gravest national peril will the people allow the President to defy a court order.  Hopefully, we will never see such a moment again.

Will the Obamacare mandate suspension lead to an executive-judiciary confrontation?  Who will have standing to challenge it?  We will have to wait and see.

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