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To: capitan_refugio
This is a common theme among the conspiracy-minded. When the Congress adjourns or recesses (unless they adjourn sine die), they establish their own date to return.

Yes, but as you know, the Constitution explicitly provides that the president may call Congress back into session during an emergency. As both Hamdi and Bollman (as well as the unanimous position of the founding fathers) note, only Congress may suspend the writ thus the president must ask Congress if he wants this done. If they are out of session it is necessarily so that he must call them back into session to ask them.

236 posted on 08/28/2004 11:22:53 AM PDT by GOPcapitalist ("Can Lincoln expect to subjugate a people thus resolved? No!" - Sam Houston, 3/1863)
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To: GOPcapitalist
"Yes, but as you know, the Constitution explicitly provides that the president may call Congress back into session during an emergency."

Article II, Section 3 - "... he [the President] may, on extraordinary Occasions, convene both Houses [of Congress], or either of them ..."

So far so good.

"As both Hamdi and Bollman (as well as the unanimous position of the founding fathers) note, only Congress may suspend the writ thus the president must ask Congress if he wants this done."

(1) I assume you meant the "Framers of the Constitution." The "Founding Fathers" were responsible for the Declaration if Independence, the Continental Congresses, and the Revolutionary War. Although some were one in the same, the Framers were responsible for the "Suspension Clause." In any case, the Framers were not unanimous in their views on the Suspension Clause and its placement in the Constitution. As you have previously noted, Jefferson, a Founding Father but not a Framer, was initially dubious about the need for the "Suspension Clause."

(2) Hamdi v Rumsfeld and Ex parte Bollman & Swartwout, as I demonstrated in my prior post, were not precedent-setting cases with regard to who might act to suspend the privilege of the writ of habeas corpus.

(3) That "only Congress may suspend the writ" is not demonstrated by the verbiage of the "Suspension Clause" itself:

Article I, Section 9, Clause 2: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it." Had an exclusive congressional power been mandated, the clause may have read, "The privilege of the Writ of Habeas Corpus shall not be suspended by Congress ..." But it doesn't say that, implicitly leaving open other options.

(4) Because the clause finally ended up in Section I, it is a textural interpretation that the power to suspend resides exclusively with the Congress. By way of additional textural interpretation, contrary to the alleged exclusivity, the "Suspension Clause" was not found in Section 8 - "Powers of Congress." Clause 6 in Section 9 applies to both the Congress and the President. In fact, the writing of Regulations has been traditionally an Executive Branch function. Furthermore, Section 10, Clause 1, in Article I, has nothing to do with Congress - it presents prohibitions on the States. And of course, the presidential power of the "veto" is also found in Article I. Not everything in Article I exclusively applies to Congress.

Your textural interpretation that the power to suspend belongs exclusively to Congress is not proved.

"If they [the Congress] are out of session it is necessarily so that he must call them back into session to ask them [to suspend the privilege of the writ].

That again, it not "necessarily so." If Congress is not in session, and war is made upon the country, the President is "bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name." It is not the role of the courts to "cripple the arm of the government and paralyze its power by subtle definitions and ingenious sophisms." So said the majority in the Prize Cases.

To date, your arguments against the early war actions of Lincoln to preserve the constitutional Union have been just that, "subtle definitions and ingenious sophisms." Lincoln believed like Jefferson, who said that a "strict observance of written laws is doubtless one of the higher duties of a good citizen, but it is not the highest .... [The] laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation."

240 posted on 08/28/2004 11:11:20 PM PDT by capitan_refugio
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