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Jack Stark, Prohibited Government Acts: A Reference Guide to the United States Constitution 48 (2002) (“The disposition is not congruent with the opinion . . . . Instead [Taney] made a mere gesture . . . .”);
Frank I. Michelman, Living with Judicial Supremacy, 38 Wake Forest L. Rev. 579, 595 n.69 (2003) (explaining that after Cadwalader refused to produce Merryman, “Taney ruled Lincoln’s order unconstitutional and void . . . but he did not issue any direct order for Merryman’s production or release” (emphasis added));
Bruce A. Ragsdale, Ex Parte Merryman and Debates on Civil Liberties During the Civil War 11 (Federal Judicial History Office 2007) (“[Taney’s] opinion without a decision was more of a political challenge to the President than a constitutional standoff between two branches of government . . . .” (emphasis added)), http://www.fjc.gov/history/docs/merryman.pdf;
Ragsdale, supra at 4 (“Taney issued no order to secure the release of John Merryman or to enforce the writs of the court.”);
Ragsdale, supra at 12 (“May 28, 1861. Taney issued an oral opinion stating that Merryman was entitled to be freed . . . but Taney issued no order to release Merryman.”);
Brian McGinty, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus 91–92 (2011) (emphasis added):
This [situation] was . . . at least remarkable. There was no order commanding anybody in the chain of command—Cadwalader, [General] Keim, General in Chief Scott, or even Abraham Lincoln himself—to set John Merryman “at liberty.” There was no court order requiring that he be released from Fort McHenry or restored to freedom. He had not, by court order, been “discharged” from the army’s custody.
McGinty, supra at 150 (“[Taney’s Merryman opinion] . . . explained why [Merryman] was entitled to be set at liberty but [it] did not order Lincoln or Cadwalader (or anybody else) to set him at liberty.”).
The courts also understood Merryman, at least circa 1861–1865.
Ex parte McQuillon, 16 F. Cas. 347, 348 (S.D.N.Y. 1861) (No. 8294) (Betts, J.) (“[Judge Betts] would, however, follow out that case [Merryman], but would express no opinion whatever, as it would be indecorous on his part to oppose the [C]hief [J]ustice. He would therefore decline taking any action on the writ at all.” (emphasis added));
In re Kemp, 16 Wis. 359, 1863 WL 1066, at *8 (1863) (Dixon, C.J.) (“I deem it advisable, adhering to the precedent set by other courts and judges under like circumstances, and out of respect to the national authorities, to withhold [granting habeas relief] until they shall have had time to consider what steps they should properly take in the case.” (emphasis added)).
Twitter: https://twitter.com/SethBTillman ( @SethBTillman )
My prior post: Seth Barrett Tillman, Eisenhower (WWII) and MacArthur (Korea): the Limits of Civilian Control, The New Reform Club (Oct. 5, 2016, 4:32 AM). [here]
My Merryman article is here: Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481 (2016) (peer reviewed), http://tinyurl.com/z934v3n, http://ssrn.com/abstract=2646888.
Randy Barnett, Did President Lincoln defy a court order by Chief Justice Taney?, The The Washington Post—Volokh Conspiracy (Oct. 8, 2016, 10:51 AM), http://tinyurl.com/zttwt5d.
William Baude (@WilliamBaude), tinyurl.com/gqmpy2v (Oct. 7, 2016, 11:13 am).
Michael Ramsey, Seth Barrett Tillman: Lincoln and Merryman, The Originalism Blog (June 20, 2015, 6:53 AM), http://tinyurl.com/ppt43pf (discussing a preliminary draft of Tillman's paper).
[EDITOR'S NOTE: The estimable constitutional scholar Randy Barnett gives this essay a big thumbs-up over at The Volokh Conspiracy.]