Today in Supreme Court History: May 25, 1861

5/25/1861: John Merryman arrested. Chief Justice Taney ruled that his detention was unconstitutional in Ex Parte Merryman.

Comments

[LexAquilia]

Ex Parte Merryman (1861) shows how the government can act fast in tough times, like a big wave of illegal immigration, to keep the country safe. Back then, President Lincoln ignored a judge’s order to free a prisoner because he thought the Civil War was too dangerous to wait. This supports quick deportations of people who cross the border illegally, since they don’t have the same rights as citizens, as shown in later cases like Shaughnessy v. Mezei (1953). The law lets officials deport them fast to avoid problems, but Merryman also says there should be some basic rules to make sure it’s fair.

If we reject the Ex Parte Merryman (1861) idea that the government can quickly deport illegal immigrants to keep things safe, the future could get messy. As we have begun to already see that without expeditious deportations, borders got too crowded, it is hard to manage schools or jobs, crime is rampant, and many citizens feel the country’s losing control.

[Malika the Maiz]

“but Merryman also says there should be some basic rules to make sure it’s fair.”

That’s all that’s going on with recent judicial pushback, there has to be some due process for people to have a chance to prove they might be here legally or not be enemies. It can’t just be the decisions of people who, for example, don’t know what habeas corpus is or that a picture isn’t photoshopped.

“crime is rampant”

Violent and property crime rates decreased in the recent statistics.

https://counciloncj.org/crime-trends-in-u-s-cities-year-end-2024-update/#:~:text=There%20were%204%25%20fewer%20reported,in%202024%20than%20in%202019.

[Malika the Maiz]

“If we reject the Ex Parte Merryman (1861) idea that the government can quickly deport illegal immigrants to keep things safe”

Also, I think you mean if you reject Lincoln’s rejection of Ex Parte Merryman which held against the idea of less due process because the government claimed an exigency.

[JoeFromtheBronx]

President Lincoln acted while Congress was out of session during an active rebellion that threatened its ability to reconvene.

Local support of insurrection made normal legal means, including obtaining grand jury indictments, dubious in the heat of the moment. Waiting even a little while was dangerous.

It being an "extraordinary occasion" (Art. II, sec. 3), he convened Congress for a special session & they addressed the situation.

It is not similarly "too dangerous to wait" to address an ongoing situation that has been going on for years. They can be detained if necessary and provided with normal due process.

Congress is also in session. Public danger does not require suspension of habeas. If it did, an exception to a check against executive abuse would be made by Congress.

Art. 1, sec. 9 includes various provisions. Some specifically reference "Congress" or "passing" something. Lincoln was correct in arguing that the Habeas Corpus provision is less clear.

Congress has the power to declare war. The president retains the power to address sudden attacks before Congress can act.

People were split on the question at the time. For instance, Reverdy Johnson agreed with Lincoln. He was a conservative who argued on the side of John Sandford in the Dred Scott case & later opposed the use of military commissions to try the alleged Lincoln assassins. Taney's position was reasonable, not compelling.

Another argument made was that the executive already had the authority to suspend habeas according to earlier congressional authorization to address insurrections.

https://www.templelawreview.org/article/80-2_vladeck/

[JoeFromtheBronx]

I was interested to learn that a Texan law professor at the time, one Joshua Ulysses Blackman, did argue CJ Taney was incorrect.

He was no fan of Lincoln but did feel that a single federal judge (note the Confederacy never did get around to creating a Supreme Court) could wrongly tie the hands of President Jefferson Davis.

Prof. JUB noted he appreciated "courageous" judges but that in this instance, he disagreed with Taney.

[not guilty]

Under Article I, § 9 of the Constitution, three criteria must coexist for a suspension of the writ of habeas corpus:

Is there a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration of habeas corpus? INS v. St. Cyr, 533 U.S. 289, 314 (2001).

Is there a case of rebellion or insurrection?

Does the public safety require suspension?

These are separate and distinct inquiries.