presidents, war, and statutes

Mon Dec 19 12:19:05 PST 2005

Habeas is only part of the story, of course.  There is also the
extraordinary action of imposing the blockade (upheld in the Prize
Cases), not to mention many other issues involved in putting down an
insurrection (or quelling an independence movement, or however you wish
to describe the events), including the matter of financing.  Even Dan
Farber, as I recall, conceded that Lincoln played fast and loose with
financing some of the early aspects of the war.  So I remain fairly
insistent that a more truly small-r President would have brought back
Congress as early as reasonably possible (and I am utterly confident
that July 4 doesn't meet that criterion).  

sandy

________________________________

From: Mark Tushnet [mailto:tushnet at law.georgetown.edu] 
Sent: Monday, December 19, 2005 2:16 PM
To: Sanford Levinson
Cc: marty.lederman at comcast.net; Stephen L. Wasby;
Conlawprof at lists.ucla.edu; lawcourts-l at usc.edu
Subject: Re: presidents, war, and *statutes*

My difference with Sandy, if it exists, is a narrow one:  Lincoln had
after all called Congress back into session, and the only questions are
(a) whether the interval between April and July was too long to count as
satisfying whatever constitutional duty of consultation Lincoln had, and
(b) whether, if that interval was not too long in the abstract, it
*became* too long when Lincoln decided to suspend the writ.  I'd have to
know a lot more about the period than I do to be able to answer question
(a), but I'm pretty confident of my answer to (b), that there's no
constitutional duty to accelerate the convening of Congress when
suspending habeas is contemplated (assuming that the initial timing of
the convening was reasonable).

Sanford Levinson wrote:

	I assume that Mark meant to write "I do not think that Lincoln
was under a constitutional duty...."  But why not?  To be sure, there's
nothing in the text requiring Lincoln to call Congress into special
session at all, let alone at the earliest possible time.  So it's an
easy case if one simply "reads the text."  But this is also requires
reading the text out of context.  Isn't there something profoundly
disturbing and "anti-constitutional" about taking advantage of "literal"
constitutional text to violate the almost certain "spirit" of the
Constitution, captured, among other places, in Article IV's invocation
of a "Republican Form of Government"?  (Or are we to believe that such a
government is "guaranteed" only to the states, and that it is perfectly
all right if the national government drifts toward non-republicanism?)
If one wants to play originalist mindgames, then imagine that the
Philadelphians had had it directly put to them that "do you mean to say
that a President faced with civil war could refuse to call Congress into
special session in order to make key decisions himself, without facing
any potential opposition from (or duty to consult with) Congress."  How
likely is it that they would have said "yes," as against something like,
"Surely you don't think that anyone virtuous enough to be president
would act in such a patently monarchical manner?" or "That possibility
didn't occur to us, since we assumed that the President would always be
imbued with republican virtue, but, just in case, we will put in place a
provision whereby Congress can call ITSELF into special session upon the
joint declaration of the Speaker of the House and the President pro Tem
of the Senate"?   Doris Kearns places a great deal of emphasis on
Lincoln's political genius of bringing his chief opponents (within the
Republican Party) into his cabinet.  But he had other opponents,
obviously, who were ensconced in Congress.  

	sandy

________________________________

	From: owner-lawcourts-l at usc.edu
[mailto:owner-lawcourts-l at usc.edu] On Behalf Of Mark Tushnet
	Sent: Monday, December 19, 2005 9:32 AM
	To: marty.lederman at comcast.net
	Cc: Stephen L. Wasby; Conlawprof at lists.ucla.edu;
lawcourts-l at usc.edu
	Subject: Re: presidents, war, and *statutes*

	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
reconvene on July 4.  Within a few weeks thereafter, he concluded that
suspension of the privilege of the writ was desirable.  One could
perhaps construe the suspension clause to require the President to call
Congress into session at the point he begins seriously to contemplate
such a suspension, or to advance the date of an already-summoned new
session at that point, but such an interpretation seems to me strikingly
awkward."

	marty.lederman at comcast.net wrote:

		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>
<mailto: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> <mailto:wasb at albany.edu> 
Date: 
Mon, 19 Dec 2005 13:14:14 +0000
To: 
Conlawprof at lists.ucla.edu

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