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Congress, the President, and Habeas Corpus

A special exchange with Robert A. Levy. Also: Beantown, babies, Maxine, Hillary, and much more.

9.3.02

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HABEAS CORPUS HOCUS POCUS
Re: Robert A. Levy's Hamdi Case Reveals Unchecked Presidential Power:

Robert A. Levy writes:

"Only Congress can suspend the 'Privilege of the Writ of Habeas Corpus ... when in Cases of Rebellion or Invasion the public Safety may require it.'"

This is not a fact, but an interpretation, and a wrong interpretation. The full text of the sentence cited by Mr. Levy is:

"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."

Thus the Constitution says absolutely nothing about who can suspend habeas corpus, only when it may be suspended. This sentence appears in Article I, which lays out the form and powers of Congress, which might seem to imply that the power to suspend is Congressional. But the same section of Article I also states:

"... a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."

Which very clearly applies to the Executive branch.

Beyond that, it would have been ridiculous for the Framers to assign a power needed in moments of extreme urgency to the branch of government that was out of session for half the year and required months to assemble.

Mr. Levy's claim is a common Libertarian shibboleth, frequently used by those who denigrate Abraham Lincoln. But it's a phony claim, and should be buried.
-- Rich Rostrom

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