presidents, war, and *statutes*

[marty.lederman at comcast.net]

Yes, Sandy, but are any of these examples of the President refusing to comply with statutory mandate, as we've seen repeatedly in this Administration?  In the Prize Cases, not only wasn't the blockade statutorily forbidden, the Court held that it was statutorily authorized (by the Militia Acts -- see Steve Vladeck's article).  I'm aware of no instance (which is why I asked this morning) where Lincoln claimed that he was acting contra legem -- indeed, as Mark is stressing, Lincoln contended (plausibly or not) that he was only doing what Congress would have done had it been in town; and, as far as I know, Lincoln (like Truman in Youngstown) gladly conceded that he would be bound by any statute Congress enacted. 

Perhaps you're correct that he had a constitutional obligation to get Congress's rubber-stamp sooner.  But he never claimed that what Congress had to say was irrelevant.  Yet that is what this Administration claims.  According to OLC (09/25/02), Congress may not "place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.”  “These decisions,” OLC wrote, “under our Constitution, are for the President alone to make."  And as if that weren't enough, we now know that Congress cannot even require the Executive to get FISA-Court approval before it engages in a dragnet of surveillance of numerous U.S. citizens and other persons (in the hopes that some of them will reveal valuable intel).


-------------- Original message -------------- 
From: "Sanford Levinson" <SLevinson at law.utexas.edu> 

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> 

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


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