presidents, war, and statutes

Tue Dec 20 14:20:34 PST 2005

Might we distinguish two situations.  In the first situation, there is
no dispute that a measure is necessary for the preservation of the
Union.  There may be no dispute, because the House, Senate, and
president agree, or because somebody has to act before anybody else can
get together.  In this circumstance, the case for extraordinary power
seems strongest.  But as a number of people on this list have pointed
out, President Bush has never been in this situation.  At present, a
disagreement exists over what is necessary for the preservation of the
Union or national security.  What is unclear is why a doctrine designed
for circumstances, where there is no disagreement should apply in
circumstances where there is disagreement.  Presumably, when a
disagreement exists over what is necessary for the preservation of the
Union and nobody doubts the loyalty of any institution the normal
constitutional rules follow.  What those normal constitutional rules are
is a subject for debate, but it does not seem appropriate to adopt rules
for constitutional emergencies in cases of good-faith disagreement.

Mark Graber

>>> "Kleinerman, Ben" <kleinermanba at vmi.edu> 12/20/05 1:42 PM >>>
It seems to me that Lincoln might concede this point but still insist,
as he writes in his 1864 letter to Hodges "that measures, otherwise
unconstitutional, might become lawful, by becoming indispensable to the
preservation of the constitution, through the preservation of the
nation."  In other words, the fundamentally extraordinary nature of the
situation and of the threat itself justified those actions that Lincoln
also continually insists would not be justifiable in ordinary times.  Of
course, this still does not answer the question as to the timing of his
calling of Congress into special session.  I would say this: the logic
of Lincoln's argument in the July 4th message to Congress in Special
Session leads to the conclusion that, in cases of true national
emergency, any law can be violated.  "Are all the laws but one to go
unexecuted, and the Government itself to go to pieces, lest that one be
violated?...Would not the official oath be broken if the government
should be overthrown, when it was believed that disregarding the single
law would tend to preserve it?"  Lincoln then claims that his actions
did not, in fact, violate any existing law.  As potentially dangerous as
such a doctrine might be, I think Lincoln thought it safe 1) if used
only in those cases when the Government itself truly would have gone to
pieces, as could be plausibly argued during the Civil War, and 2) if the
holder of such power continually and publicly insisted upon a
distinction between extraordinary and ordinary times: a distinction that
taught the public to accept such actions in extraordinary times but
never to accept them in ordinary times.     

Benjamin A. Kleinerman

Assistant Professor

Department of International Studies and Political Science

Virginia Military Institute

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Monday, December 19, 2005 3:19 PM
To: Mark Tushnet
Cc: lawcourts-l at usc.edu; Conlawprof at lists.ucla.edu
Subject: RE: presidents, war, and *statutes*

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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