From snowybear’s link:
““NATIONAL EMERGENCY: (as defined in Black’s Law Dictionary) A state of national crisis; a situation demanding immediate and extraordinary national or federal action. Congress has made little or no distinction between a “state of national emergency” and a “state of war”. Brown v. Bernstein, D.C.Pa., 49 F.Supp. 728, 732.””
And since we are in a ‘state of war’, then there can be unlawful combatants, subject to military tribunals, correct?
(Who was the freeQer who was researching the unlawful combatants; I wanted to include them in my ping, but couldn’t recall who it was)
There are military tribunals underway every day, and some against "unlawful combatants."
The combination that is approximately forbidden by the civilian courts is US citizens in military court. The only way around that is to disable the civilian courts, and even the Civil War didn't go that far.
Not that civilian courts couldn't be shut down or circumvented, but that condition would take or be a radical change from status quo.
The rhetoric in the case you cited is a distinction by Congress. The branch that defends the civilian courts is the civilian courts. IOW, the distinction we look for is not one that Congress does or does not make, it is one that the courts make or do not make.
If national emergency is a trigger to shut down the civilian courts, then why are the civilian courts still open?
Brown v. Bernstein, 49 F. Supp. 728 (1943)
The case was brought by a the government, against a person who flouted regulations pertaining to the rationing of meat during WWII.
Prentiss M. Brown, Administrator, Office of Price Administration, has filed in this court his complaint against the above-named defendant, alleging violation of a governmental meat restriction order and praying that the defendant be enjoined and restrained from further violation thereof.
My first impression is that this case has defendant attacking an administrative regulation as being outside the scope of power Congress granted the administrative agency.
The case is worth a read. It discusses balance of powers between Congress and the President, and in particular the power of the president to declare a state of emergency.
I would point out that this case was heard and decided by a civilian court, not a military tribunal. And that even though the civilian court took judicial notice ...
This court takes judicial notice that a state of war exists. [citations omitted] We are at war with the most dangerous military powers on earth. The safety and welfare of our citizens and the success of our armed forces at home and abroad depend upon the proper control of our resources.