presidents, war, and *statutes*

Mark Tushnet tushnet at law.georgetown.edu
Mon Dec 19 11:33:51 PST 2005


Lincoln argued in the alternative:  that the Constitution authorized him 
to suspend the writ pending subsequent congressional consideration (and 
authorization), and that, if the Constitution were to be interpreted 
otherwise (erroneously, according to the first position), he was 
empowered to act extra-constitutionally.

Lynne Henderson wrote:

> My understanding is that Lincoln suspended habeas knowing/admitting 
> that he was acting extra-constitutionally (the "all clauses but one" 
> statement) and without congressional authorization. Is this 
> understanding mistaken? (*compare* the current administration's claims 
> that all it has done is constitutional and within the President's CINC 
> or foreign affairs powers)
> Curiously,
> Lynne Henderson
> On Dec 19, 2005, at 7:07 AM, Mark Tushnet wrote:
>
>     I could be wrong, but I have always understood it to have been a
>     suspension of sec. 2241, which has been on the books since the
>     beginning.  (Indeed, I actually have some difficulty understanding
>     the concept of "constitutional habeas," in light of ordinary
>     understandings that the jurisdiction of the federal courts is
>     entirely statutory.  But, exploring that difficulty would take us
>     very far afield.)
>
>     marty.lederman at comcast.net wrote:
>
>         Mark:  Was Lincoln's (temporary) suspension of habeas, pending
>         Congress's return, a suspension of a habeas statute?  I assume
>         it was; but most accounts I've seen either treat it as a
>         suspension of constitutional habeas, or simply don't mention
>         any preexisting statutes.
>
>             -------------- Original message --------------
>             From: Mark Tushnet <tushnet at law.georgetown.edu>
>             The closest Lincoln came, I think, was in the suspension
>             of habeas corpus pending Congress's return.  Here's a
>             slightly edited version of a footnote I've written dealing
>             with that decision:  "Lincoln provided at least an
>             alternative defense of his suspension of habeas corpus,
>             that the Constitution authorized him to suspend the writ
>             until it was possible to obtain a suspension from
>             Congress, as it was not in the early days of the Civil
>             War.  Congress was not in session during that period, and
>             I do not that Lincoln was under a constitutional duty to
>             ensure that Congress reconvene at the earliest possible
>             moment.  Or, perhaps more precisely:  In April Lincoln
>             called for Congress to.......Steve:  Does Kleinerman
>             discuss whether any of Lincoln's emergency actions
>             actually violated statutes?  If so, did Lincoln
>             acknowledge that he was acting contra legem, and, if so,
>             did he use the Commander-in-Chief Clause as
>             justification?  Was the suspension of habeas inconsistent
>             with extant habeas statutes?  Did the Emancipation
>             Proclamation in effect violate existing Fugitive Slave
>             Acts, or other statutes? 
>
>                  
>                 As I've always understood it (not necessarily
>                 accurately), Lincoln was acting in an "emergency"
>                 situation, while Congress was not convened; that
>                 Congress, when it returned to D.C., actually ratified,
>                 by statute, virtually all of Lincoln's most
>                 controversial actions; and, most importantly, that
>                 Lincoln conceded that if Congress thought Lincoln had
>                 gone astray, Lincoln would follow any statutory
>                 directives, and would subordinate his own judgments as
>                 Commander-in-Chief to the superseding decisions of the
>                 legislature. 
>                  
>                 Can anyone tell me if that account is accurate?  If
>                 so, does it remain the case that Lincoln was violating
>                 pre-existing statutes "in the interim," while awaiting
>                 congressional decision?
>                  
>                 More broadly, can anyone identify any cases prior to
>                 this Admininistration in which a President has invoked
>                 his Commander-in-Chief power as justification for
>                 actually acting contra legem? 
>                  
>                 Thanks in advance.
>
>                     -------------- Original message --------------
>                     From: "Stephen L. Wasby" <wasb at albany.edu>
>                     Readers of this list might be interested in an
>                     article in the newest issue of Perspectives on
>                     Politics (Vol. 3, #4, Dec 2005) from American
>                     Political Science Association:  Denjamin A.
>                     Kleinerman, "Lincoln's Example: Executive Power
>                     and the Survival of Constitutionalism," 801-816,
>                     an effort
>
>
>                     to bring a different perspective to the present
>                     debate about constitutions, executive prerogative,
>                     and war time "necessities."
>
>
>                         Steve Wasby
>
>
>
>
>                 Subject:
>                 presidents, war, and constitutions
>                 From:
>                 "Stephen L. Wasby" <wasb at albany.edu>
>                 Date:
>                 Mon, 19 Dec 2005 13:14:14 +0000
>                 To:
>                 Conlawprof at lists.ucla.edu
>
>                 _______________________________________________
>                 To post, send message to Conlawprof at lists.ucla.edu
>                 To subscribe, unsubscribe, change options, or get
>                 password, see
>                 http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>                 Please note that messages sent to this large list
>                 cannot be viewed as private. Anyone can subscribe to
>                 the list and read messages that are posted; people can
>                 read the Web archives; and list members can (rightly
>                 or wrongly) forward the messages to others.
>
>     _______________________________________________
>     To post, send message to Conlawprof at lists.ucla.edu
>     To subscribe, unsubscribe, change options, or get password, see
>     http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>     Please note that messages sent to this large list cannot be viewed
>     as private. Anyone can subscribe to the list and read messages
>     that are posted; people can read the Web archives; and list
>     members can (rightly or wrongly) forward the messages to others.
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20051219/05ad5553/attachment.html


More information about the Conlawprof mailing list