As John Merryman was Taney's Baltimore neighbor and acquaintance, and that there were other judges that could have considered the habeas petition, Taney certainly could have recused himself. He chose confrontation because he was a pro-southern activist justice.
Assuming that Lincoln's exercise of emergency warpowers and suspension of (the privilege of the writ of) habeas corpus were constitutional, then, as Farber points out in Lincoln's Constitution (pg 190-191), the court would have utterly lacked jurisdiction to hear a habeas petition. After Congress retrospectively approved Lincoln's actions, Taney's pique in Ex parte Merryman became a moot point.
Farber writes (pg 162), "Although it is usually said that the Supreme Court never ruled on the legality of Lincoln's habeas suspension, Moyer [v Peabody] was the next best thing to a direct holding on the point, though delivered years after the fact. In the spring and summer of 1861, the area of isurrection might be said to include Maryland. If so, under Moyer, Lincoln clearly would have been empowered to use deadly force to suppress insurrection. It is hard to quarrel with [Oliver Wendell] Holmes's conclusion that the power to detain dangerous individuals goes along with the power to use deadly military force against them."
That's a mighty big assumption for you to make, capitan, especially considering that it runs contrary to the unanimous opinion of the founding fathers and virtually every single case precedent from Federal District all the way up to the Supreme Court.
After Congress retrospectively approved Lincoln's actions, Taney's pique in Ex parte Merryman became a moot point.
Yawn. Even if Congress could retroactively allow it (a disputed issue in itself) the fact remains that they did not do so for another two years after Taney's ruling. During those two years at least four other federal courts in four different jurisdictions ruled the exact same way that Taney did. Lincoln ignored every single one of them and even let his henchmen place one of the judges under house arrest.
Assuming the conclusion, the conclusion is thus proven.
as Farber points out in Lincoln's Constitution (pg 190-191), the court would have utterly lacked jurisdiction to hear a habeas petition
What Farber actually said, page 191, is "Arguably, a valid suspension of the writ does eliminate the courts very power to proceed. This was apparently Congress's veiw in the Habeas Corups Act, which confirmed the suspension." ... "Thus, a plausible argument can be made that during a suspension, the executive not only has a valid legal defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or releae the prisoner." Page 192 "Still, allowing the president to ignore an adverse ruling about the validity of the suspension is undoubtedly dangerous." ... "If this jurisdictional analysis is rejected, however, we should concede that Lincoln's action was unlawful. It is fruitless to argue for a general power of executive nullification. Lincoln himself did not even offer this defense, and history speaks strongly against it. Instead, we are thrown back on the necesiry defense that he did in fact offer."
"Arguably... a plausible argument can be made... if this jurisdictional analysis is rejected, however, we should concent that Lincoln's action was unlawful."
[cr] After Congress retrospectively approved Lincoln's actions, Taney's pique in Ex parte Merryman became a moot point.
Congress R-E-F-U-S-E-D to approve Lincoln's action of delegating to the military, the power to suspend the privilege of the writ of habeas corpus. Congress R-E-F-U-S-E-D to retrospectively approve Lincoln's claim to authority to suspend the privilege of the writ of habeas corpus. The Lincoln administration tried to get such approval via Senate Resolution SR-1. It was crushed in the Senate.
When Congress did authorize suspension of the privilege of the writ in 1863, it added many conditions that had to be complied with.
The second section required that lists of all persons, being citizens of states in which the administration of the laws had continued unimpaired in the Federal courts, who were then held or might thereafter be held as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished to the judges of the Circuit and District Courts. The lists transmitted to the judges were to contain the names of all persons, residing within their respective jurisdictions, charged with violation of national law. And it was required, in cases where the grand jury in attendance upon any of these courts should terminate its session without proceeding by indictment or otherwise against any prisoner named in the list, that the judge of the court should forthwith make an order that such prisoner desiring a discharge, should be brought before him or the court to be discharged, on entering into recognizance, if required, to keep the peace and for good behavior, or to appear, as the court might direct, to be further dealt with according to law. Every officer of the United States having custody of such prisoners was required to obey and execute the judge's order, under penalty, for refusal or delay, of fine and imprisonment.
The third section provided, in case lists of persons other than prisoners of war then held in confinement, or thereafter arrested, should not be furnished within twenty days after the passage of the act, or, in cases of subsequent arrest, within twenty days after the time of arrest, that any citizen, after the termination of a session of the grand jury without indictment or presentment, might, by petition alleging the facts and verified by oath, obtain the judge's order of discharge in favor of any person so imprisoned, on the terms and conditions prescribed in the second section.
[cr] Farber writes (pg 162), "Although it is usually said that the Supreme Court never ruled on the legality of Lincoln's habeas suspension, Moyer [v Peabody] was the next best thing to a direct holding on the point, though delivered years after the fact. In the spring and summer of 1861, the area of isurrection might be said to include Maryland. If so, under Moyer, Lincoln clearly would have been empowered to use deadly force to suppress insurrection. It is hard to quarrel with [Oliver Wendell] Holmes's conclusion that the power to detain dangerous individuals goes along with the power to use deadly military force against them."
In Ex Parte Milligan, during a suspension, the Supreme Court wrote, "The first question, therefore-Ought the writ to issue?-must be answered in the affirmative."
Moyer involved a miners strike.
The area of insurrection might be said to include Maine, however absurd that may be, and authorize Lincoln so authorize Scott to suspend the privilege of the writ in Maine. At the time of Merryman's arrest, there was not even any significant civil disturbance. While it might be said that there was some insurrection going on at the time of Merryman's arrest in Maryland, such claim cannot pass the laugh test.
It is hard to apply Holme's argument to Merryman. He was at home, sleeping in his bed, in the middle of the night. There was no legal power to used deadly force against Merryman. Nobody had the legal power to enter his abode and shoot him dead in his bed. No power to detain flowed from any nonexistent power to use deadly force.