# Legal basis of the Civil War Enrollment Act?

**URL:** <https://boards.straightdope.com/t/legal-basis-of-the-civil-war-enrollment-act/670409>\
**Category:** Factual Questions\
**Created:** [October 5, 2013, 1:34am UTC](https://boards.straightdope.com/t/legal-basis-of-the-civil-war-enrollment-act/670409 "2013-10-05T01:34:25Z")\
**Posts on this page:** 2\
**Page:** 2

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**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\
**Post date:** [October 6, 2013, 5:41am UTC](https://boards.straightdope.com/t/legal-basis-of-the-civil-war-enrollment-act/670409/21 "2013-10-06T05:41:20Z")

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> [@Exapno\_Mapcase](#):
>
> But we don’t even have to speculate about this one. Captain Amazing’s great cite shows us that a court found the law to be constitutional. Since no higher court ruled otherwise, that settles it legally.

That court’s ruling was indeed correct, in the sense that it agreed with me: constitutional under the raising-armies and the necessary-and-proper clauses.

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**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\
**Post date:** [October 7, 2013, 5:24am UTC](https://boards.straightdope.com/t/legal-basis-of-the-civil-war-enrollment-act/670409/22 "2013-10-07T05:24:15Z")

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> [@TSBG](#):
>
> I don’t think I’m equipped to argue at that level, as IANACL. My understanding of Article 1 and the habeas corpus controversy come from my conversations with legal experts about the Bush/Cheney administration’s approach to the law, and those experts’ responses to the defense “Lincoln suspended habeas corpus, so [controversial policy] is okay.” The people I spoke to seemed to take it as given that suspending habeas corpus was reserved to Congress.

I was responding initially to your statement that Lincoln acted extra-constitutionally, which seemed to me to imply that it was well-known at the time that only Congress could suspend habeas. The reality is that at that time, it was uncertain which branch of government could suspend habeas, since there was not any case-law on the issue prior to the Civil War. So, it was not so cut-and-dried at that time that Lincoln was acting “extra-constitutionally.” The issue was an open one.

As a result of Lincoln’s actions, there was a significant court case which held that only Congress could suspend habeas: [Ex parte Merryman](https://en.wikipedia.org/wiki/Ex_parte_Merryman), a decision by Chief Justice Taney, holding that only Congress can suspend. However, that was a circuit court decision, not a decision of the Supreme Court.

Chief Justice Rehnquist has written about this issue, in a book on Lincoln’s position. He seemed to be sympathetic to Lincoln’s argument that the power to suspend habeas was part of the President’s war-making powers during a war.

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