Not at all. The Supreme Court and other Federal courts have spoken to the issue. All of the following were in my response.
And Chief Justice Marshall, in delivering the opinion of the supreme court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch [8 U. S.] 95: 'It may be worthy of remark, that this act (speaking of the one under which I am proceeding) was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.' And again on page 101: 'If at any time, the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws.' I can add nothing to these clear and emphatic words of my great predecessor.
-- Chief Justice Roger B. Taney, Ex Parte Merryman,/i>, In Chambers Opinion of the Chief Justice of the Supreme Court.
"Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I."
-- Justice Antonin Scalia, Hamdi v. Rumsfeld, No. 03-6696. Argued April 28, 2004 - Decided June 28, 2004
"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide."
-- Chief Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807
"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted."
-- Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849
And in the ratification documents to the Constitution:
"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus.
-- Act of Ratification of the Convention of the State of New York
And in the writing of various jurists:
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power"
-- William Rawle, "A View of the Constitution of the United States of America," 1826
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body."
-- Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833
"In England the benefit of this important writ can only be suspended by authority of parliament. It has been done several times of late years, both in England and in Ireland, to the great oppression of the subject, as hath been said. In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ."
-- Tucker's Blackstone, Section 12 - Restraints on Powers of Congress, paragraph 2.
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief."
-- Justice Benjamin R. Curtis, "Executive Power," 1862
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also."
-- Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention
[cr] As Jaffa explains, "Assuming that the letter of the constitution enjoins Lincoln from suspending the writ, it is also true that the letter enjoins him to take care that the laws be faithfully executed. But he cannot execute any of the laws in one-third of the states. And the spread of the rebellion will prevent him from any or all of his efforts to fulfill the Constitutional mandate. To prevent the rebellion from succeeding, the suspension of the writ is an indispensable means. Is it not certain the failure of one law is preferred to the failure of all?"
Assuming that the letter of the constitution enjoins Lincoln from suspending the writ terminates the discussion. Assuming that the letter of the Constitution enjoins him to take care that the laws be faithfully executed, the Constitution provided a lawful means to suspend habeas corpus. Lincoln wilfully and deliberately kept the Congress out of session for four (4) months during the greatest crisis in the nation's history. He wanted the Congress out of session. While they were out of session he acted unlawfully. He could have convened Congress at any time.
[cr] And, as you well know, there has even to this date, been no authoritative decision by the Supreme Court regarding the President's emergency powers with regard to suspension. Farber summarizes:
As you well know, there is no authoritative decision by the Supreme Court holding that the Chief Justice of the Supreme Court cannot assume the powers of the President. From your assinine logic, this would empower the Chief Justice to assume the powers of the Executive Branch.
As you well know, the Constitution gives the power to authorize suspension of the privilege of the writ of habeas corpus to the Legislative Branch and not to the President. There is no emergency clause which gives the power to the President. The powers of the President are limited to those given to him by the Constitution and he cannot usurp every power the Supreme Court has not specifically told him he cannot usurp. Moreover, in an in chambers opinion of the Chief Justice of the Supreme Court, Lincoln was specifically provided with the prior rulings of the Court, and the history of the writ, and he knew full well that he was violating the law.
[cr/farber] "In emergencies - sudden attack or insurrection - the president has the power to suspend the writ of habeas corpus and detain suspects within the general zone of military conflict."
Farber's assertion is without visible means of support.
Lincoln did not suspend habeas corpus in any area of sudden attack or insurrection. He authorized military officers to suspend the privilege of the writ in the states that were -NOT- in insurrection. Among the first places he authorized suspension was Pennsylvania. Shortly after that he authorized suspension in Maine. This lame argument is a specious fraud. And no matter how many times it is ignored in specious argument, it was not Lincoln who was suspending the privilege of the writ, but military officers who claimed they had the power to do so at their discretion.
[cr/farber] Congress has ultimate control over suspension of habeas.
Congress is the only branch of government with the power to authorize the suspension of the privilege of the writ of habeas corpus. Without Congressional prior authorization, the President has no authority to suspend the privilege of the writ. There is no emergency clause which gives such power to the President in time of emergency. By his own choice and desire, Lincoln willfully and deliberately kept the Congress out of session for four months.
[cr/farber] The only apparent limitations on congress are the existence of an invasion or insurrection and of the requisite need to protect the public safety.
There was no invasion. There was no insurrection where Lincoln authorized suspension of the privilege of the writ. Was there an April 1861 insurrection in Pennsylvania??? Was there an 1861 insurrection in Maine?? Lincoln empowered military officers to suspend the privilege of the writ at the discretion of said officers. It was military officers who were suspending the privilege of the writ of habeas corpus at their discretion. Such despotic power has never been upheld by any court.
In any case, the limitations on CONGRESS do not provide any authority to a despotic President.
Lincoln claimed he did not exceed the powers of CONGRESS. Lincoln was not CONGRESS. Could the Speaker of the House or the Chief Justice assume the powers reserved for the Executive Branch and excuse themselves by saying they had not exceeded the powers of the President?
I'm watching the Olympics. I'll get back to you shortly.
As Professor Paludan noted: "Taney looked into books and precedents written in times of peace to proclaim limits on a president in times of war - the judge even denied that the conditions in Maryland were disruptive enough to require military involvement. And he insisted that unless Congress suspended the writ the President had to await a call to action from the courts before he could perform any act suppressing the rebellion. [According to Taney,] the chief executive could only act when a court told him someone had disobeyed a court order .... Lincoln's position gave the national government a mandate to act: it showed the Constitution to be an instrument for action, not paralysis."
In the early days of the war, in the spring and summer of 1861, Lincoln made the correct choices to preserve the constitutional Union. Congress never condemned or overruled his war powers, and in fact, ratified his actions. Only in the case of the habeas corpus suspensions did the Congress seek to provide addition guidance and a framework.
The Scottish historian Peter Parish, in The American Civil War, gives an insightful view of congressional politics at the time. "The Supreme Court was never required to give a ruling on the habeas corpus issue during the war and Congress, too, proved curiously indecisive or evasive on the matter. It was difficult to find a formula which asserted the rights of congress without challenging what the President had already done, and, even in the Habeas Corpus Act of 1863, the draftees resorted to a form of word which could be interpreted either as a recognition of Presidential power or a delegation of a Congressional power to the executive."
Paludan: "Action was imperative, however, as Baltimore had demonstrated. Throughout the nation the possibility for similar disloyalty was woven into the demography and politics."
Not at all! You need to read the entire quotation. Lincoln was faced with an unprecedented situation. Lincoln had called Congress back into session by his proclamation in April 1861, to assemble on July 4, 1861. But events were escalating rapidly. His actions to protect the constitutional union, the enforce the laws, and to suppress the rebellion were both prudent and lawful.
I realize that is unpleasant for the Lincoln-hating cabal to here, but it is a fact.
There are very few express powers of the President in Article II, but a myriad of implied powers, especially with regard to wartime situations. Some of these implied powers were discussed in the Prize Cases. As Farger notes, "The first argument for extensive crisis authority posits the existence of extraconstitutional powers, vested in the president not by the Constitution, but by the very nature of his position as chief executive of a nation. If there are essential powers that go with nationhood and cannot be effectively exercised by other organs of government, then the mere act of creating a nation might be thought to convey these powers, without the need for any specific constitutional language."
Farber continues, "In the end, the concept of inherent executive power - whether extraconstitutional or via the vesting clause or the oath clause - is largely irrelevant to the question of what specific actions are legally authorized. If the president does have inherent powers, we are still left with the very difficult task of determining scope. Presumably we must understand that scope within the overall scheme of democratic government."
You should realize, too, that the argument that the constitution gives the power to suspend the writ to Congress is purely textural. It says no such thing. It only provides the circumstances regarding when it may be properly suspended.
Gee, you even quoted Scalia's dicta in your reply. I should say this has been one of your more "assinine" hairballs.
Taney's motivation was well-known. Merryman reperesents his second greatest failure as a justice. It was a flawed ruling, based on a flawed premise, on flawed jurisdiction, which was widely dismissed outside of insurrectionist circles. As you are undoubtedly aware, Taney had the habit of drafting his opinions on issues in hopes of finding a case in which to apply them. He didn't need to hear arguments! "Taney's obvious tilt toward the Confederacy showed that he had travelled far from the days when he advised Andrew Jackson on how to suppress nullificationists. Indeed, he had become one himself in all but name."