Who Stole Professor Michael Paulsen?Seth Barrett Tillman

This is a comment on Professor Paulsen’s Checking the Court, N.Y.U. J.L. & Liberty 18 (2016) (noted here).

In a 1993 article, Professor Paulsen suggested that the President has independent interpretive autonomy over legal issues involving federal law (including constitutional law), and that the President may “decline to enforce judicial decrees that he believes rest on an unsound interpretation of the law—what I [i.e., Professor Paulsen] have called the Merryman power.” Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81, 109 (1993) (emphasis added).

Professor Paulsen defended this presidents-have-interpretive-autonomy position, in substantial part, based upon Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.), also reported at 4 (pt. 1) A Collection of In Chambers Opinions by the Justices of the Supreme Court of the United States 1400–12 (Cynthia Rapp & Ross E. Davies comps., 2004), and more importantly, based on President Lincoln’s conduct following Chief Justice Taney’s ruling in that case. See Paulsen, The Merryman Power, supra at 95 (“Lincoln did not, except by implication, assert what I call ‘the Merryman power’—authority to disregard, or to countermand, judgments rendered by federal courts.” (emphasis added)); id. at 89 (“In Ex parte Merryman, Lincoln ... refus[ed] to honor a judicial decree as binding law on the executive, even in that specific case.” (emphasis added)); see also Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 Notre Dame L. Rev. 1227, 1290 (2008) (“[Lincoln’s] position, as expressed by his (in)action [post-Merryman], was that the President was not bound to obey and enforce judicial decrees that he believed were incorrect, whenever circumstances suggested complying with the decision would be in some meaningful way harmful to important national interests.” (emphasis added)).

Finally, there can be no genuine doubt that when Professor Paulsen argued that Lincoln had failed to comply with Taney’s Merryman “decree,” Paulsen was referring (at least) to Taney’s May 28, 1861 final Merryman order, and not (merely) to Taney’s May 26, 1861 preliminary ex parte order to produce John Merryman, and not (merely) to Taney’s May 27, 1861 interim attachment order against General Cadwalader. See, e.g., Paulsen, The Merryman Power, supra passim; see also Paulsen, Lincoln and Judicial Authority, supra at 1285 (“Lincoln’s denial of judicial supremacy [in Ex parte Merryman] extend[ed] . . . even to final judicial decrees in a particular case . . . .” (emphasis added)); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power To Say What The Law Is, 83 Geo. L.J. 217, 278 (1994) (explaining that Taney “ordered Merryman released”); id. at 279 (“Lincoln dissented. He did not release Merryman as Taney had ordered.”); cf. Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691, 719 (2004) (reviewing Daniel Farber, Lincoln’s Constitution (2003)) (“Lincoln erased even that line, refusing to abide by Chief Justice Taney’s order in Ex parte Merryman invalidating Lincoln’s suspension of the privilege of the writ of habeas corpus, and declining to enforce Taney’s granting of the writ and contempt order against one of Lincoln’s generals.” (emphasis added)).

Professor Paulsen has made these claims, and closely related claims, continuously since 1993 (when he published The Merryman Power), and in more than a dozen academic articles, right up until and including 2015, where they appear yet again in his (co-authored) book and subsequent article in First Things. See, e.g., Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 249 (2015) (“Chief Justice Roger Taney ruled against President Lincoln’s suspension of the writ of habeas corpus in the Civil War in 1861, but Lincoln disregarded that decree . . . .” (emphasis added)); id. (“Abraham Lincoln did not comply with Chief Justice Taney’s order in Merryman.”). Compare Michael Stokes Paulsen & Luke Paulsen, The Great Interpreter, First Things, May 2015, at 50 (“President Lincoln defied the Court’s order—the only time a [P]resident has done this in our nation’s history—arguing that the Constitution was ambiguous on the point and that circumstances necessitated his action while Congress was out of session.”), with Paulsen, The Merryman Power, supra at 83 n.5 (“Merryman is the most famous example of presidential refusal to enforce a Supreme Court judgment, but it is not the only one. President Andrew Jackson is reputed to have refused to enforce the Supreme Court’s decision in Worcester v. Georgia . . . .”).

Although Professor Paulsen has had other arguments and evidence in support of his presidents-have-interpretive-autonomy position, e.g., arguments based upon constitutional structure, separation of powers norms, and some Hamilton-authored originalist materials, Paulsen’s repeated focus on Merryman and Lincoln’s response to Merryman has always been key (if not the key) to his argument. Indeed, Paulsen named his thesis: The Merryman Power. And it is no surprise that Paulsen would rely on Lincoln in this manner—today, the memory of the assassinated President enjoys a status akin to that of a secular saint. (Perhaps—deservedly so.) Like President Washington and the precedents Washington established, practices established by Lincoln carry a presumption of constitutional propriety, if not more.

However, in Professor Paulsen’s most recent paper, Checking the Court, N.Y.U. J.L. & Liberty 18 (2016), although Paulsen continues to defend his presidents-have-interpretive-autonomy position, Paulsen’s two decade old argument based upon Lincoln’s post-Merryman war-time conduct is nowhere to be seen. “But now all is to be changed”?

 Now it is possible that I am reading too much into this: i.e., too much into an argument’s absence. But such arguments from absence are sometimes justified. See, e.g., Paulsen, Lincoln and Judicial Authority, supra at 1290 (“[Lincoln’s] position, as expressed by his (in)action, was that the President was not bound to obey and enforce judicial decrees that he believed were incorrect . . . .” (emphasis added)). Perhaps, Professor Paulsen continues to believe the standard Merryman narrative which he has done so much to promote in academic journals for more than two decades: viz: Chief Justice Taney ordered President Lincoln to release John Merryman, and Lincoln refused to comply with Taney’s order. If that is the situation, if Paulsen continues to believe the standard historical narrative, then there is no grand mystery at work here. But given that this historical narrative has occupied pride of place in Paulsen’s many publications (and he is hardly alone in promoting the standard narrative in this manner) ... its absence from his 2016 paper is somewhat odd ... if Professor Paulsen has changed his mind—might not he tell us why, and how if at all his loss of faith in the standard historical narrative might modify the conclusions he put forward in The Merryman Power and in his subsequent publications?

And if we can get Professor Paulsen to respond to this inquiry ... perhaps, he could also clarify a subsidiary point.

In 1993, Professor Paulsen squarely rejected the position that Ex parte Merryman was a circuit court case; instead, he embraced the position that Taney decided Merryman in chambers. See The Merryman Power, supra at 90 n.27. But in 1999, Paulsen wrote that Merryman was decided by Taney, not merely while on circuit, but in his capacity “as circuit justice.” Michael Stokes Paulsen, Nixon Now: The Courts and the Presidency After Twenty-five Years, 83 Minn. L. Rev. 1337, 1351 (1999). Then, in 2015, Paulsen suggested Merryman was a Supreme Court decision. See Paulsen & Paulsen, supra at 177 (“Lincoln understood the Constitution not necessarily to mean whatever the Supreme Court said it meant concerning slavery and national authority (Dred Scott) or concerning presidential power in wartime (Ex parte Merryman).” (emphasis added)). Which is it?