Suspending the Writ – An Uncertain Power: Why it is Advantageous that the Authority to Suspend the Writ of Habeas Corpus is Ambiguous

Authors

• Hance M. Winingham, Angelo State University

Volume Number

54

Issue Number

1

Abstract

Traditional constitutional views hold that the power to suspend habeas corpus is a power that is granted to Congress only; but America’s actual history casts doubt on this interpretation. This article argues that the clause’s placement in Article I and simultaneous omission of any specific branch is uniquely advantageous. The Suspension Clause’s placement in Article I greatly deters the president from abusing the suspension power. However, the omission of any explicit mention of Congress also allows for the president to plausibly argue that he can exercise this power. Because of the nature of emergencies, the suspension of habeas corpus is most effectively exercised by the executive branch. Moreover, only when a crisis is unexpected will the president be forced to suspend the writ. When a crisis can be predicted, Congress is able to deliberate and then authorize a future suspension of habeas corpus ahead of time.

Recommended Citation

Winingham, Hance M. (2026) "Suspending the Writ – An Uncertain Power: Why it is Advantageous that the Authority to Suspend the Writ of Habeas Corpus is Ambiguous," Journal of Political Science: Vol. 54: No. 1, Article 5.
Available at: https://digitalcommons.coastal.edu/jops/vol54/iss1/5