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.
The Supreme Court, in an opinion written by Chief Justice John Marshall still ruled, "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."
-- Ex Parte Bollman and Swartwout, United States Supreme Court, 1807
The Constitution reserves the power of authorizing suspension of the privilege of the writ of habeas corpus to the Legislative Branch. I realize this is unpleasant, but it is a fact and quoting history professors, philosophers, and specialists in metaphysics will not change that fact. Unless you can cite a LAW, rather than a Lincoln apologist, Lincoln's actions will remain UNLAWFUL. The Constitution contains no Paludan/Jaffa/Farber/Scottish historian clause granting Lincoln the power to suspend habeas corpus. Further, nobody even pretends that a president has the power to authorize military officers to suspend the privilege of the writ at their discretion. That is what Lincoln actually caused to happen -- you might not like it, but it is a fact.
Lincoln could have convened Congress at any time. He kept them OUT of session as long as he could without losing the militia.
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
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"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
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"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
The Nazi Germans called that idea das Fuehrerprinzip. It was the keystone of Nazi jurisprudence and political science. Millions of Germans died carrying it into effect, and they killed millions of others before they died themselves. And you let Farber wave that bloody banner here, under the same excuse Hitler himself used to seize it -- "crisis authority"?
What a wonderful idea. Let a man win an election, invent a crisis, claim crisis authority, and then ride the People down into a mass grave.
No, I don't think even Hamilton had that in mind.