Moyer v. Peabody
Encyclopedia
Moyer v. Peabody, 212 U.S. 78
(1909), is a decision by the United States Supreme Court
which held that the governor and officers of a state National Guard
, acting in good faith
and under authority of law, may imprison without probable cause
a citizen of the United States
in a time of insurrection and deny that citizen the right of habeas corpus
.
, in the mining industry in the state of Colorado
. In August 1902, the Western Federation of Miners
(WFM) organized mill workers in Colorado City, Colorado
. The employers planted a spy
in the union
, and the evidence of union activity the mole gathered led to the dismissal of 42 union members. Union-employer negotiations over the dismissals began almost immediately, and dragged on into 1903. With the negotiations at a standstill, the WFM struck
on February 14, 1903. After the number of miners walking the picket lines grew in March and April, the mine owners decided to seek state aid. Governor James Peabody
was strongly anti-union, and the employers worked with him to craft a response which would break the strike and the union. Although Colorado City was quiet and no public disorders of any magnitude had occurred, the employers and local authorities claimed extensive rioting had occurred and that local and county law enforcement were unable to handle the mobs. Governor Peabody called out the Colorado militia
, investing them around Colorado City. Outraged miners in nearby Cripple Creek
and the western city of Telluride
also walked off the job, and the militia was deployed in those cities as well. Mass arrests began in September 1903, breaking the strike. One of those arrested was Charles Moyer.
Moyer had traveled to Telluride to protest the mass arrests and deportation
of miners. He lent his signature to a WFM poster (see right) denouncing the arrests. Moyer was arrested on March 28, 1904, for desecrating the American flag
. He was released on bail, but re-arrested the following day on the orders of the Adjutant General of the state militia on the grounds of "military necessity".
Moyer's predicament was not unusual. The state militia had detained hundreds of striking workers and union leaders for many weeks in bullpen
s, and had disregarded hundreds of habeas corpus petitions.
Moyer petitioned a Colorado state court for a writ
of habeas corpus, which was granted. However, the Colorado State Attorney General
and the local district attorney refused to honor the writ. Moyer appealed to the Colorado Supreme Court
. On June 6, 1904, the Colorado Supreme Court ruled in In re Moyer, 35 Colo. 163
, that Moyer's constitutional right to due process and habeas corpus had not been violated. The court held that the governor had acted under color of state law
, and that the courts had no jurisdiction
to review the governor's finding that a state of insurrection
existed in Colorado.
Moyer appealed to the U.S. District Court in Missouri, and obtained a writ of habeas corpus on July 5, 1904.
Alarmed by the writ, Governor Peabody revoked the finding of insurrection the same day and ordered Moyer released by 3:45 p.m. (before the federal writ could be served). Moyer was released, but continued to press his case. The U.S. Supreme Court accepted certiorari
, and oral argument occurred on January 5 and January 6, 1909.
Associate Justice Oliver Wendell Holmes, Jr.
delivered the opinion for a unanimous court. The decision was a mere seven paragraphs long. The first three paragraphs were devoted to determining the jurisdiction of the court.
Holmes began by refusing to question whether a state of insurrection actually existed in Colorado. "It is admitted, as it must be, that the Governor's declaration that a state of insurrection existed is conclusive of that fact," Holmes wrote. "The facts that we are to assume are that a state of insurrection existed and that the Governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could release him. Holmes then made what is considered a famous statement about due process
: "But it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation."
The existence of the state of insurrection was, therefore, critical. The state constitution and statutes both gave the governor the power to call out the militia, put down rebellion, and hold rebels without providing for relief. Holmes not only incorporated the findings of the Colorado Supreme Court in his opinion, but once more refused to entertain any arguments to the contrary: "In such a situation we must assume that he had a right under the state constitution and laws to call out troops, as was held by the Supreme Court of the State." But Holmes' assumptions were not ironclad. He left open the door for plaintiffs to challenge whether or not a state of insurrection did, in fact, exist. In this case, however, the plaintiff did not do so.
Absent any such challenge by the plaintiff to the factual situation, Holmes concluded that plaintiffs have no recourse under law. Holmes placed his faith utterly in the democratic process and a citizenry's ability to elect leaders of "good faith."
The judgment left plaintiffs one straw to cling to. Holmes suggested in dicta
that plaintiffs might have grounds if their imprisonment were lengthy: "If we suppose a Governor with a very long term of office," Holmes hypothesized, "it may be that a case could be imagined in which the length of the imprisonment would raise a different question. But since Moyer's incarceration had lasted only four months, that line had not (it was implied) been crossed.
by the time the case reached the Supreme Court. The Court only accepted the case because it arose under demurrer
which challenged the legal sufficiency of the government's action. Oddly, although the case was accepted on demurrer, the Court refused to acknowledge that Moyer had, in fact, contested Peabody's finding that a state of insurrection existed in Colorado in 1904.
union linked to a potent political party. Subsequently, Moyer and the WFM helped found the radical Industrial Workers of the World
in 1905. While Samuel Gompers
and the American Federation of Labor
sought an accommodation with capitalism
and the status quo, a large minority of American workers did not—and another three decades of labor unrest was caused, in part, by desperate workers who felt the courts were closed to them.
, 17 F. Cas. 144
(1861), Ex parte Benedict, 3 F. Cas. 159
(N.D.N.Y. 1862), and Ex parte Milligan
, 71 U.S. 2
(1866). In this regard, it has a lengthy legal pedigree. But the case also spawned a new line of legal analysis. For example, one Supreme Court justice called Moyer the foundation of the "'good-faith' analysis…of our modern doctrine of qualified immunity."
Despite the firm grounding Moyer v. Peabody has in U.S. constitutional law, the case is considered controversial. In Luther v. Borden
, 48 U.S. 1
(1849), the U.S. Supreme Court had established the "political question
" test, in which a court may refuse to rule because the issue is political rather than judicial. Moyer is controversial in part because Justice Holmes took much of the dicta in Luther and made it binding law. The decision is also controversial because, despite the analysis in Ex parte Benedict, Moyer allowed states to implement martial law without judicial review.
Although Moyer focused on the immediacy of war, this aspect of the ruling has proven troublesome to the courts. Earlier Supreme Court decisions had emphasized the importance of the existence of open conflict. For example, in Mitchell v. Harmony, 54 U.S. (13 How.) 115
(1851), the Supreme Court upheld the power of military officials to seize property to prevent violence. But the Court limited that power by requiring the danger to be immediate. In some ways, Moyer retreats from the court's ruling in Mitchell: Holmes accepted the case under demurrer, but then refused to consider Moyer's challenge to the finding of a state of emergency. But Moyer nevertheless stands in the tradition of Mitchell because the Moyer court recognized that only immediate violence was grounds for suspending the writ.
The vexing problem of immediacy would cause the Supreme Court to later back away from Holmes' ruling in Moyer. Just a quarter of a century later, in Sterling v. Constantin, 287 U.S. 378
(1932), the Court held (contra Moyer) that executive findings of a state of insurrection must be subject to judicial review. In Sterling, the governor of Texas
had restricted production of oil from certain wells by claiming that a state of insurrection existed in some areas of his state. Not only did the Supreme Court conclude that such claims of insurrection were subject to judicial review, but after review the court actually rejected the governor's finding. Citing Mitchell v. Harmony, the Court endorsed "the argument that without judicial review, the boundaries setting apart real emergencies will break down. Chief Justice Hughes explicitly articulated the fear that if emergency powers are beyond court scrutiny then soon all government action will be characterized as an emergency."
For most of the 20th century, Supreme Court jurisprudence ignored Moyer. Prior to 2004, the last decision to rely heavily on Moyer was Scheuer v. Rhodes, 416 U.S. 232
in 1973. In Scheuer v. Rhodes, survivors of the victims of the Kent State shootings
of 1970 sued the Ohio Army National Guard
for damages. A lower court rejected the suit, using the rationale provided in Moyer. But the U.S. Supreme Court unanimously reversed, "emptying the Moyer precedent of most of its residual authority."
After the 9/11
attacks, however, Moyer took on new significance. In 2004, the case was thoroughly discussed in the Supreme Court's "illegal enemy combatant" decision, Hamdi v. Rumsfeld
, 542 U.S. 507
(2004). The Moyer case may take on increasing significance in the future as the "War on Terror
" continues. "The ruling's appeal to present-day government lawyers is obvious. The administration has taken pains to emphasize that the Padilla detention order—like the order establishing the ground rules for military commissions—was signed by President Bush in the exercise of his authority as commander-in-chief. And if a state governor playing commander-in-chief can persuade the courts to rubber-stamp his abusive actions, surely a President can, too."
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1909), is a decision by the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
which held that the governor and officers of a state National Guard
United States National Guard
The National Guard of the United States is a reserve military force composed of state National Guard militia members or units under federally recognized active or inactive armed force service for the United States. Militia members are citizen soldiers, meaning they work part time for the National...
, acting in good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
and under authority of law, may imprison without probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
a citizen of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
in a time of insurrection and deny that citizen the right of habeas corpus
Habeas corpus in the United States
Habeas corpus , Latin for "you [shall] have the body," is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment...
.
Background
The case arose out of a wave of labor disputes, known as the Colorado Labor WarsColorado Labor Wars
Colorado's most significant battles between labor and capital occurred primarily between miners and mine operators. In these battles the state government, with one clear exception, always took the side of the mine operators....
, in the mining industry in the state of Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
. In August 1902, the Western Federation of Miners
Western Federation of Miners
The Western Federation of Miners was a radical labor union that gained a reputation for militancy in the mines of the western United States and British Columbia. Its efforts to organize both hard rock miners and smelter workers brought it into sharp conflicts – and often pitched battles...
(WFM) organized mill workers in Colorado City, Colorado
Colorado City, Colorado
Colorado City is a census-designated place in Pueblo County, Colorado, United States. It is part of the Pueblo Metropolitan Statistical Area. The population was 2,193 at the 2010 census...
. The employers planted a spy
Labor spies
Labor spies are persons recruited or employed for the purpose of gathering intelligence, committing sabotage, sowing dissent, or engaging in other similar activities, typically within the context of an employer/labor organization relationship....
in the union
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
, and the evidence of union activity the mole gathered led to the dismissal of 42 union members. Union-employer negotiations over the dismissals began almost immediately, and dragged on into 1903. With the negotiations at a standstill, the WFM struck
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
on February 14, 1903. After the number of miners walking the picket lines grew in March and April, the mine owners decided to seek state aid. Governor James Peabody
James Hamilton Peabody
James Hamilton Peabody was the 13th and 15th Governor of Colorado, and is noted for his public service in Cañon City.-Family background:...
was strongly anti-union, and the employers worked with him to craft a response which would break the strike and the union. Although Colorado City was quiet and no public disorders of any magnitude had occurred, the employers and local authorities claimed extensive rioting had occurred and that local and county law enforcement were unable to handle the mobs. Governor Peabody called out the Colorado militia
Colorado Army National Guard
The Colorado Army National Guard is a component of the United States Army and the United States National Guard. Nationwide, the Army National Guard comprises approximately one half of the US Army's available combat forces and approximately one third of its support organization...
, investing them around Colorado City. Outraged miners in nearby Cripple Creek
Cripple Creek, Colorado
The City of Cripple Creek is a Statutory City that is the county seat of Teller County, Colorado, United States. Cripple Creek is a former gold mining camp located southwest of Colorado Springs near the base of Pikes Peak. The Cripple Creek Historic District, which received National Historic...
and the western city of Telluride
Telluride, Colorado
The town of Telluride is the county seat and most populous town of San Miguel County in the southwestern portion of the U.S. state of Colorado. The town is a former silver mining camp on the San Miguel River in the western San Juan Mountains...
also walked off the job, and the militia was deployed in those cities as well. Mass arrests began in September 1903, breaking the strike. One of those arrested was Charles Moyer.
Moyer had traveled to Telluride to protest the mass arrests and deportation
Deportation
Deportation means the expulsion of a person or group of people from a place or country. Today it often refers to the expulsion of foreign nationals whereas the expulsion of nationals is called banishment, exile, or penal transportation...
of miners. He lent his signature to a WFM poster (see right) denouncing the arrests. Moyer was arrested on March 28, 1904, for desecrating the American flag
Flag of the United States
The national flag of the United States of America consists of thirteen equal horizontal stripes of red alternating with white, with a blue rectangle in the canton bearing fifty small, white, five-pointed stars arranged in nine offset horizontal rows of six stars alternating with rows...
. He was released on bail, but re-arrested the following day on the orders of the Adjutant General of the state militia on the grounds of "military necessity".
Moyer's predicament was not unusual. The state militia had detained hundreds of striking workers and union leaders for many weeks in bullpen
Bullpen
In baseball, the bullpen is the area where relief pitchers warm-up before entering a game. Depending on the ballpark, it may be situated in foul territory along the baselines or just beyond the outfield fence. Also, a team's roster of relief pitchers is metonymically referred to as "the bullpen"...
s, and had disregarded hundreds of habeas corpus petitions.
Moyer petitioned a Colorado state court for a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
of habeas corpus, which was granted. However, the Colorado State Attorney General
State Attorney General
The state attorney general in each of the 50 U.S. states and territories is the chief legal advisor to the state government and the state's chief law enforcement officer. In some states, the attorney general serves as the head of a state department of justice, with responsibilities similar to those...
and the local district attorney refused to honor the writ. Moyer appealed to the Colorado Supreme Court
Colorado Supreme Court
The Colorado Supreme Court is the highest court in the U.S. state of Colorado. Located in Denver, the Court consists of a Chief Justice and six Associate Justices.-Appellate jurisdiction:...
. On June 6, 1904, the Colorado Supreme Court ruled in In re Moyer, 35 Colo. 163
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, that Moyer's constitutional right to due process and habeas corpus had not been violated. The court held that the governor had acted under color of state law
Color (law)
In U.S. law, the term color of denotes the “mere semblance of legal right”, the “pretense or appearance of” right; hence, an action done under color of law colors the law to the circumstance, yet said apparently legal action contravenes the law....
, and that the courts had no jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
to review the governor's finding that a state of insurrection
Insurgency
An insurgency is an armed rebellion against a constituted authority when those taking part in the rebellion are not recognized as belligerents...
existed in Colorado.
Moyer appealed to the U.S. District Court in Missouri, and obtained a writ of habeas corpus on July 5, 1904.
Alarmed by the writ, Governor Peabody revoked the finding of insurrection the same day and ordered Moyer released by 3:45 p.m. (before the federal writ could be served). Moyer was released, but continued to press his case. The U.S. Supreme Court accepted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
, and oral argument occurred on January 5 and January 6, 1909.
Holding
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
delivered the opinion for a unanimous court. The decision was a mere seven paragraphs long. The first three paragraphs were devoted to determining the jurisdiction of the court.
Holmes began by refusing to question whether a state of insurrection actually existed in Colorado. "It is admitted, as it must be, that the Governor's declaration that a state of insurrection existed is conclusive of that fact," Holmes wrote. "The facts that we are to assume are that a state of insurrection existed and that the Governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could release him. Holmes then made what is considered a famous statement about due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
: "But it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation."
The existence of the state of insurrection was, therefore, critical. The state constitution and statutes both gave the governor the power to call out the militia, put down rebellion, and hold rebels without providing for relief. Holmes not only incorporated the findings of the Colorado Supreme Court in his opinion, but once more refused to entertain any arguments to the contrary: "In such a situation we must assume that he had a right under the state constitution and laws to call out troops, as was held by the Supreme Court of the State." But Holmes' assumptions were not ironclad. He left open the door for plaintiffs to challenge whether or not a state of insurrection did, in fact, exist. In this case, however, the plaintiff did not do so.
Absent any such challenge by the plaintiff to the factual situation, Holmes concluded that plaintiffs have no recourse under law. Holmes placed his faith utterly in the democratic process and a citizenry's ability to elect leaders of "good faith."
- So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.
The judgment left plaintiffs one straw to cling to. Holmes suggested in dicta
Dictum
In United States legal terminology, a dictum is a statement of opinion or belief considered authoritative though not binding, because of the authority of the person making it....
that plaintiffs might have grounds if their imprisonment were lengthy: "If we suppose a Governor with a very long term of office," Holmes hypothesized, "it may be that a case could be imagined in which the length of the imprisonment would raise a different question. But since Moyer's incarceration had lasted only four months, that line had not (it was implied) been crossed.
Aftermath
Moyer v. Peabody was long mootMootness
In American law, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law...
by the time the case reached the Supreme Court. The Court only accepted the case because it arose under demurrer
Demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection...
which challenged the legal sufficiency of the government's action. Oddly, although the case was accepted on demurrer, the Court refused to acknowledge that Moyer had, in fact, contested Peabody's finding that a state of insurrection existed in Colorado in 1904.
Effect on the labor movement
Historians argue that the case radicalized a significant portion of the American labor movement. Moyer himself concluded that the state's use of military power to crush unions could only be countered by a syndicalistSyndicalism
Syndicalism is a type of economic system proposed as a replacement for capitalism and an alternative to state socialism, which uses federations of collectivised trade unions or industrial unions...
union linked to a potent political party. Subsequently, Moyer and the WFM helped found the radical Industrial Workers of the World
Industrial Workers of the World
The Industrial Workers of the World is an international union. At its peak in 1923, the organization claimed some 100,000 members in good standing, and could marshal the support of perhaps 300,000 workers. Its membership declined dramatically after a 1924 split brought on by internal conflict...
in 1905. While Samuel Gompers
Samuel Gompers
Samuel Gompers was an English-born American cigar maker who became a labor union leader and a key figure in American labor history. Gompers founded the American Federation of Labor , and served as that organization's president from 1886 to 1894 and from 1895 until his death in 1924...
and the American Federation of Labor
American Federation of Labor
The American Federation of Labor was one of the first federations of labor unions in the United States. It was founded in 1886 by an alliance of craft unions disaffected from the Knights of Labor, a national labor association. Samuel Gompers was elected president of the Federation at its...
sought an accommodation with capitalism
Capitalism
Capitalism is an economic system that became dominant in the Western world following the demise of feudalism. There is no consensus on the precise definition nor on how the term should be used as a historical category...
and the status quo, a large minority of American workers did not—and another three decades of labor unrest was caused, in part, by desperate workers who felt the courts were closed to them.
Legal analysis
Moyer v. Peabody had its foundation in previous court rulings in the United States, and spawned a number of subsequent decisions. It is one in a long line of cases extending back through Ex parte MerrymanEx parte Merryman
Ex parte Merryman, 17 F. Cas. 144 , is a well-known U.S. federal court case which arose out of the American Civil War. It was a test of the authority of the President to suspend "the privilege of the writ of habeas corpus"...
, 17 F. Cas. 144
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1861), Ex parte Benedict, 3 F. Cas. 159
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(N.D.N.Y. 1862), and Ex parte Milligan
Ex parte Milligan
Ex parte Milligan, , was a United States Supreme Court case that ruled that the application of military tribunals to citizens when civilian courts are still operating is unconstitutional. It was also controversial because it was one of the first cases after the end of the American Civil...
, 71 U.S. 2
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1866). In this regard, it has a lengthy legal pedigree. But the case also spawned a new line of legal analysis. For example, one Supreme Court justice called Moyer the foundation of the "'good-faith' analysis…of our modern doctrine of qualified immunity."
Despite the firm grounding Moyer v. Peabody has in U.S. constitutional law, the case is considered controversial. In Luther v. Borden
Luther v. Borden
Luther v. Borden, 48 U.S. 1 , was a case in which the Supreme Court of the United States established the political question doctrine in controversies arising under the Guarantee Clause of Article Four of the United States Constitution Luther v. Borden, 48 U.S. 1 (1849), was a case in which the...
, 48 U.S. 1
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1849), the U.S. Supreme Court had established the "political question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
" test, in which a court may refuse to rule because the issue is political rather than judicial. Moyer is controversial in part because Justice Holmes took much of the dicta in Luther and made it binding law. The decision is also controversial because, despite the analysis in Ex parte Benedict, Moyer allowed states to implement martial law without judicial review.
Although Moyer focused on the immediacy of war, this aspect of the ruling has proven troublesome to the courts. Earlier Supreme Court decisions had emphasized the importance of the existence of open conflict. For example, in Mitchell v. Harmony, 54 U.S. (13 How.) 115
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1851), the Supreme Court upheld the power of military officials to seize property to prevent violence. But the Court limited that power by requiring the danger to be immediate. In some ways, Moyer retreats from the court's ruling in Mitchell: Holmes accepted the case under demurrer, but then refused to consider Moyer's challenge to the finding of a state of emergency. But Moyer nevertheless stands in the tradition of Mitchell because the Moyer court recognized that only immediate violence was grounds for suspending the writ.
The vexing problem of immediacy would cause the Supreme Court to later back away from Holmes' ruling in Moyer. Just a quarter of a century later, in Sterling v. Constantin, 287 U.S. 378
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1932), the Court held (contra Moyer) that executive findings of a state of insurrection must be subject to judicial review. In Sterling, the governor of Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
had restricted production of oil from certain wells by claiming that a state of insurrection existed in some areas of his state. Not only did the Supreme Court conclude that such claims of insurrection were subject to judicial review, but after review the court actually rejected the governor's finding. Citing Mitchell v. Harmony, the Court endorsed "the argument that without judicial review, the boundaries setting apart real emergencies will break down. Chief Justice Hughes explicitly articulated the fear that if emergency powers are beyond court scrutiny then soon all government action will be characterized as an emergency."
For most of the 20th century, Supreme Court jurisprudence ignored Moyer. Prior to 2004, the last decision to rely heavily on Moyer was Scheuer v. Rhodes, 416 U.S. 232
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
in 1973. In Scheuer v. Rhodes, survivors of the victims of the Kent State shootings
Kent State shootings
The Kent State shootings—also known as the May 4 massacre or the Kent State massacre—occurred at Kent State University in the city of Kent, Ohio, and involved the shooting of unarmed college students by members of the Ohio National Guard on Monday, May 4, 1970...
of 1970 sued the Ohio Army National Guard
Ohio Army National Guard
The Ohio Army National Guard is a part of the United States National Guard and a reserve component of the United States Army. It is also a component of the organized militia of the state of Ohio, which also includes the Ohio Naval Militia, the Ohio Military Reserve and the Ohio Air National Guard...
for damages. A lower court rejected the suit, using the rationale provided in Moyer. But the U.S. Supreme Court unanimously reversed, "emptying the Moyer precedent of most of its residual authority."
After the 9/11
September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
attacks, however, Moyer took on new significance. In 2004, the case was thoroughly discussed in the Supreme Court's "illegal enemy combatant" decision, Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...
, 542 U.S. 507
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2004). The Moyer case may take on increasing significance in the future as the "War on Terror
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
" continues. "The ruling's appeal to present-day government lawyers is obvious. The administration has taken pains to emphasize that the Padilla detention order—like the order establishing the ground rules for military commissions—was signed by President Bush in the exercise of his authority as commander-in-chief. And if a state governor playing commander-in-chief can persuade the courts to rubber-stamp his abusive actions, surely a President can, too."