Suspension as an emergency power.

• Author: Tyler, Amanda L.

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." (10) Instead, "the very purpose of suspension is to permit Congress to override core due process safeguards during times of crisis. In effect, suspension operates as an 'on/off' switch for this due process right and possibly other portions of the Constitution as well." (11) A suspension, on this view, lawfully expands executive power to arrest and detain during the emergency, albeit only so much as is necessary to combat effectively the crisis at hand. In short, this view marries the rights protected by the Great Writ with those displaced in the event of a valid suspension.

Another account, which this Article will call the "narrow view" of suspension, sets forth a very different vision of suspension. The narrow view argues that a suspension extinguishes the judicial power to order a prisoner's discharge (12) but accomplishes virtually nothing else. (13) Thus, on this account, a suspension cannot lawfully authorize the executive to arrest or detain any person who could not be arrested and held in the absence of a suspension. (14) Such arrests, even if "authorized" by the express terms of the suspension, remain unlawful and unconstitutional. It follows from this view that an executive officer later may be sued and prosecuted for such illegal arrests, (15) so long as Congress has not separately conferred immunity on the officer for such conduct. (16)

At this point, one might observe that the import of the differing interpretations of the breadth of the suspension authority is nothing more than a debate over the proper default rule governing damages actions targeting arrests made pursuant to a suspension. (17) But there is much more at stake. (18) According to the narrow view, because suspension does not constitute authorization, the executive, in honoring his oath to uphold the Constitution, may not arrest anyone during a suspension who could not lawfully be arrested in the absence of suspension. (19) If this proposition is correct, then the traditional narrative that the "suspension of this writ is a most extraordinary power" (20) is much overstated? (21)

This Article contends that the narrow view is overwhelmingly at odds with the historical understanding of suspension in this country and is both theoretically untenable and functionally undesirable as a matter of constitutional interpretation. Part I offers general background on the debate over what it means to suspend the privilege of the writ of habeas corpus. Parts II and III demonstrate by a careful march through the historical evidence that the consistent understanding of suspension in this country has been one that comprehends a proper exercise of the power as expanding executive power while "suspending" those rights that find protection and meaning in the Great Writ. As this survey shows, although our tradition views imprisonment without due process of law as anathema, in the vein of William Blackstone, it nonetheless recognizes that "sometimes, when the state is in real danger, even this may be a necessary measure." (22) As Blackstone counseled, in a situation of "extreme emergency," a suspension of the privilege of the writ of habeas corpus calls on the nation to "part[] with its liberty for a while, in order to preserve it forever." (23) In short, suspension has never been viewed as "the mere removal of a particular remedy." (24)

Part IV, in turn, contends that the text and framing of the Suspension Clause also support a broader conception of the suspension power. As is well known, the Framers "understood that individual rights begin where federal power ends." (25) Their recognition of a legislative power to suspend the privilege of the writ, more than any other provision in the Constitution, underscores this lesson. Further, the whole point of a suspension is to expand the powers of the political branches so that they may address effectively the emergency at hand. Taking into account the extraordinary circumstances in which a valid suspension may be declared reveals how, by that act, Congress lawfully may authorize the executive to engage in some measure of preventive detention. By contrast, adopting the narrow view of suspension would lead a suspension (to borrow from the author of the Civil War suspension legislation) to "mean very little or nothing at all" (26) and certainly not to constitute anything resembling an emergency power.

Finally, Part V situates suspension within our constitutional structure and argues that because it represents a dramatic departure from the twin principles of government accountability and protection of individual liberty, it is imperative that exercises of the suspension power be closely guarded and carefully checked. This means, among other things, that Congress must play an active role in determining whether a suspension is the appropriate response to an existing crisis. Put another way, the executive should not be permitted to declare a suspension unilaterally. Likewise, as I have argued in prior work, it is precisely because of the dramatic effects of a suspension on individual liberty that a decision by the political branches to invoke the authority should not be understood as categorically immune from judicial review. To permit the political branches to decide for themselves the constitutionality of their decision to suspend the privilege would, in effect, convert the most fundamental of individual liberties into nonjusticiable political questions. (27)

In the end, I hope to convince the reader of two points. First, the suspension power is a truly stupendous emergency power, one that can lead to the displacement of those rights enshrined in the Great Writ for the purpose of enabling the political branches effectively to steer the country through the crisis at hand. Second, this recognition underscores all the more why a decision to suspend the privilege cannot reside in one branch alone and why suspension should be viewed truly as a last resort measure. The genius in the...