> -----Original Message----- > From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On > Behalf Of Doug > Sent: Tuesday, June 26, 2007 11:10 PM > To: Killer Bs Discussion > Subject: Re: VP not part of Executive Branch? > > Replying to my own post, sorry, but I thought that my statements might > require further substantiation. 8^) > > I wrote: > > > Furthermore, using a precedent set during our civil war as justification > > for similar war powers for the so-called war on terror (which, in fact, > > is not a war), is ludicrous.
I read the interview you referenced, a book review on the subject, as well as a Findlaw article on the subject. From what I read, I see little dispute with what I saw as precedence with Lincoln. What started the line of questioning for me was the deference paid to the President's role as Commander-in-Chief by the courts, the Congress, and the citizens of the US during the last 100 or so years. If one simply looks at the Constitution, one sees that the President is the Commander-in-Chief, while the Congress sets the rules for war. There is no indication of the type of power the President has had. So, how is this engrained in our laws, and why has the Supreme Court tended to strongly defer to the President in matters of War? The argument I have been given from someone who has looked at Supreme Court decisions on Lincoln's actions in the Civil war (I haven't found them on line yet), is that his saving of the Union through the strong exercise of presidential power had a very strong influence on the Supreme Court in the last half of the 19th century. Paraphrasing Lincoln "he cut off the arm to save the life." His actions could not be supported by the clear and obvious meaning of the Constitution. Let's look at several of them: 1) He arrested the Maryland legislature, which had violated no laws but were on the way to a secession vote, and held them indefinitely on his word alone. 2) He commanded the spending of significant sums of money at the beginning of the war without any authorization from Congress. 3) He freed the slaves, not by a law, but by proclamation. I understand how the justification given by Farber, but it seems to be a bit of a stretch from the plain meaning of the law. He freed all slaves in the South, not knowing if every slave holder actually supported secession. Among the millions of slave holders, there must have been a few that weren't in rebellion and wanted the union to stay together. Now, I'd agree that his actions were justified. I agree that he should have "cut off the arm to save the patient's life." Further, I'll agree that Lincoln respected the Constitution and tried to stay within the clear meaning of it's provisions as much as possible. I'd argue, though, that he saw "preserve the union" at the heart of his Constitutional responsibility and was willing to play fast and loose with specific clauses if he felt it was absolutely required to preserve the union. In hindsight, he appears to have been amazingly right. He was a genius who did the near impossible. He was also a patriot who didn't see the US as a tool of his own power, but took only the power needed to preserve the Union. But, one repercussion of his justified actions is that people who followed saw his actions as consistent with the heart of the Constitution. As a result, subsequent Supreme Court decisions have proclaimed many of Lincoln's actions as Constitutionally justified...thus providing a stare decisis for later Presidential actions. This backdrop is necessary to understand the tremendous deference paid to the President as Commander-in-Chief during wartime. Thus, the jailing of people for unpatriotic speech in WWI, the military trials in WWII, the internment of the Japanese-Americans in WWII were not questioned by the Supreme Court...because they were justified by the power of the Commander-in-Chief during wartime. (Yes, it's true that Congress was involved in the internment, and the Supreme Court ruled that there was an implicit suspension of Habeas Corpus...but that's more an extension of the principal than a refutation.) With this backdrop, we come to the actions of Bush II. When I referred to the precedent, I was thinking mostly of the strong deference the Supreme Court paid to Bush's role as commander in chief. They worked hard on not intervening for several years. Looking at the Constitution, I could find no justification for such deference. But, if one considers the stare decisis, one then can understand this action. > > How does that set a precedent for the abuses of power exercised by this > president who though no state of emergency existed at the time of > detention, has detained U.S. citizens and held them incommunicado and whom > has not requested authorization for doing so from congress? There are a couple of things to say in response to this. The first involves a question: Has he detained US citizens or _a_ US citizen who was not, technically, in the country at the time? One of the reasons I ask this is that it seems to me that his actions were far more limited than Lincoln's....who arrested a state legislature within the United States. The second is, when thinking of precedents, I was trying to understand the actions of the courts, not Bush. Given the legal framework that now exists, it's very reasonable for courts to give the POTUS a lot of leeway in their actions, since there is an established body of case law that indicates that they should pay such deference. Indeed, the Courts have tended to look to Congress to put limitations on the President...and Congress was loath to do so for several years. In conclusion, when I was talking about precedents, I was not thinking about justifying Bush's actions. They were so ham-handed that even someone who would support similar powers for the Commander-in-Chief would tend to oppose what Bush actually did. What I was talking about was the legal framework in which the other two branches of government were operating in...and why simple condemnation of their actions as weak and unprecedented doesn't really fit our history...and does not provide a good understanding of the dynamics. Dan M. _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
