The U.S. Constitution envisions three co-equal branches of the federal government, the executive (President of the U.S.), the legislature (Congress) and the court (Supreme Court of the U.S. or SCOTUS). The intent was to limit the abuse of power by each branch. The president might control the military, but Congress controls the budget. The president and Congress are restrained by SCOTUS and voters can dump obnoxious, out of touch members of Congress.
The ugly truth is that it’s never really worked that way. The early presidents feuded with Congress while SCOTUS twiddled its thumbs and met in squalid rooms because Congress wouldn’t approve money for a proper courtroom. Chief Justice John Marshall admitted in 1803 that SCOTUS could not force the president’s administration to comply with the court’s decisions.
The first president to push the limits of presidential power was also the first populist president, Andrew Jackson (President, 1829 – 1837). He fought with everyone. He defied a SCOTUS decision when he removed the Cherokee and four other tribes from the southeastern U.S. He battled Congress over the renewal of the charter for the Bank of the United States. The bank had some of the functions of a central bank, like issuing currency, but also acted like a main street bank lending money and holding deposit accounts.
President Jackson hated the bank, considering it to be too powerful. Like all plantation owners, he was constantly in debt to New York banks, living under the threat of bankruptcy and foreclosure. Jackson’s hostility was matched by his attorney general, Roger B. Taney.
Roger B. Taney
Taney prepared a legal memorandum stating that the charter for the Bank of the United States was unconstitutional because the bank was no longer “necessary”. But his legal argument went further. He argued that the president had expansive powers under the Constitution that included declaring a law unconstitutional. Jackson vetoed the bill renewing the bank’s charter and rewarded Taney in 1836 by nominating him to be Chief Justice of SCOTUS.
Chief Justice Taney’s view of presidential authority did a U-turn in 1861 after the election of Abraham Lincoln. As Lincoln took office, the south seceded and the Civil War began. Washington, DC was in imminent danger of being cut off from the rest of the Union because all communication lines ran through Maryland.
Most Marylanders sympathized with the South, particularly in Baltimore. They waged a scorched earth campaign, burning railroad bridges and ripping up railroad tracks in an effort to cut off Washington, DC. To protect the capital, Lincoln declared martial law in Maryland and suspended habeas corpus. This allowed Union troops to arrest any known or suspected saboteur or Southern sympathizer without obtaining a warrant for their arrest.
On May 25, 1861, a wealthy landowner and state legislator named John Merryman was arrested at 2 am and imprisoned at Ft. McHenry. He was accused of burning railroad bridges and tearing down telegraph lines in northern Maryland.
Merryman was given access to his lawyer who filed a writ of habeas corpus in federal court the same day as the arrest. The writ was also delivered to Chief Justice Taney on May 25th. At that time, members of SCOTUS served as circuit court judges and Taney immediately declared he would preside.
Taney, as circuit court judge, ordered the military commander at Ft. McHenry to appear in court with Merryman on May 27th. The military commander was a lawyer and the brother of a federal judge. He sent an aide to read a written statement declining to bring Merryman to the courthouse. Taney threatened the military commander with contempt of court and issued a second writ, which was also ignored.
At that point, an infuriated Taney issued a written opinion, as a circuit court judge, which he indicated would be sent directly to President Lincoln who would have an opportunity to respond. The gist of the legal opinion was that the right to suspend habeas corpus appeared in Article 1 of the Constitution, which outlines Congressional authority.
Abraham Lincoln
Article 2, which delineates presidential authority, does not mention the specific right to suspend habeas corpus. Taney’s new interpretation would mean that a president had severely limited authority, which was the opposite of what he said when Jackson was president. This new interpretation also conflicted with an earlier SCOTUS opinion in which Taney stated that the governor of Rhode Island could use martial law to put down an armed insurrection.
Taney’s new interpretation has been cited in later cases as a laudable example of defending civil liberties from arbitrary actions by the president and the military. However, in 1861, the opinion was a piece of partisan nonsense. Lincoln was dealing with an armed insurrection (we now call it the Civil War) in which 11 states had seceded, and the national capital was geographically surrounded by enemy combatants.
Taney then committed what can at best be described as an indiscretion. Instead of delivering his opinion to President Lincoln as promised, Taney published it. Like many of today’s SCOTUS leaks, it was an unethical attempt to influence public opinion.
But Lincoln was a top-notch lawyer himself and an even more adroit politician. He bided his time until the next session of Congress in 1863 when his party dominated both houses. Congress promptly voted to authorize the suspension of habeas corpus. Congress also voted to reorganize the federal circuits to create two new “seats” for the new western, and pro-Union, states. Basically, Congress diluted the power southern holdovers like Taney.
Meanwhile, Merryman was released on bail in July 1861, having spent about two months in Ft. McHenry with constant access to his lawyer. Taney insisted that he would preside over Merryman’s trial. He then repeatedly postponed the trial on grounds of poor health while refusing to allow another judge to take over the trial. After a three-year delay, Taney died and Merryman was never prosecuted.
Since the Constitution was written, there have been fears that a president would abuse his authority and use the military to violate civil liberties. In times of war, Congress has usually allowed the president more latitude to conduct warrantless arrests and incarcerate citizens without trial.
But in peace time, even when there is a great deal of social and political upheaval, Congress and the courts have limited the president’s power. In fact, after the Civil War ended, the Supreme Court immediately condemned the suspension of civil liberties.
Today, we again have a populist president whose administration defies court orders it doesn’t like, particularly those related to civil liberties protections. SCOTUS has reversed its own opinions to now allow the Trump administration to take actions that were declared unconstitutional under the Obama and Biden administrations. Congress is too busy bickering to be of use to anyone. The limits of presidential power are being tested in ways that the founders hoped to avoid.
This account of presidential powers is based on Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers, by James F. Simon (2006).
