Farber refutes that line of reasoning.
"But there is an important exception. A court that lacks the power to hear a case - lacks jurisdiction over the defendant or over the subject matter of the case - cannot give itself jurisdiction by fiat. The court's judgment is open to attack on the basis of lack of jurisdiction....
"It probably goes too far to say that the president can always make his own independent determination of whether a court had jurisdiction.... But if the court's exercise of judicial power is a clear usurpation of authority over a case that it has no colorable claim to be hearing, or if the court's claim of jurisdiction invades some critical constitutional policy, then the president may not be obligated to obey. Regard for checks and balances should make us reluctant to go much beyond such extraordinary cases. But when a court acts without jurisdiction at the expense of critical constitutional values, presidential noncompliance coheres with our normal understanding of the biding effect of judicial decrees.
"Whether we take the traditional approach and speak of jurisdiction, or a pragmatic approach based on constitutional policy, the question is ultimately the same: how drastic an effect does habeas suspension have on the courts? Does it merely require them, on the merits, to reject the petition if they find that the suspension is valid? Or does it render them utterly powerless to go forward after being notified of the situation, so that the executive is excused from paying further attention to the proceedings?
"Arguably, a valid suspension of the writ does eliminate the court's very power to proceed. This was apparently Congress's view in the Habeas Corpus Act, which confirmed the suspension. The jurisdictional view is also supported [ironically] by Taney's comment in another case. When a state court received a habeas petition from a federal prisoner, Taney did not merely say that granting relief had been erroneous. Instead, he said, when state judges learn that the petitioner is held in federal custody, 'they can proceed no further.' Thus, when habeas runs into a paramount federal interest, something more than ordinary legal error is involved if the court does not desist.
"The jurisdictional view of suspension also fits the purpose of suspending the writ. Suspension takes place only when needed to preserve public safety during invasion or insurrection. Thus, by definition, we are dealing with dire emergencies. It would be a considerable burden on the officers who are seeking to cope with the emergency if they are required to attend to habeas litigation. habeas proceedings would require them to produce prisoners before a potentially disloyal tribunal and engage in litigation over the validity of their actions. It would also introduce the possibility of release with or without bail. All of this would be highly disruptive to efforts to cope with the emergency. Thus, a plausible argument can be made that during a suspension, the executive not only has a valid legal defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or release the prisoner."
Farber's alleged refutation is as circular as your own. You cannot prove a point by affirming it as a consequent, capitan.
"But there is an important exception. A court that lacks the power to hear a case - lacks jurisdiction over the defendant or over the subject matter of the case - cannot give itself jurisdiction by fiat.
The court did not need to give itself jurisdiction in habeas corpus matters - it already had it from the Judicial Act of 1789 and that same jurisdiction had been upheld in Bollman. Lincoln, on the other hand, had the burden of proving that he could magically take the jurisdiction of the court away despite no evident constitutional mechanism for him to do so, seeing as the constitution gives jurisdictional control exclusively to congress.
"It probably goes too far to say that the president can always make his own independent determination of whether a court had jurisdiction.... But if the court's exercise of judicial power is a clear usurpation of authority over a case that it has no colorable claim to be hearing, or if the court's claim of jurisdiction invades some critical constitutional policy, then the president may not be obligated to obey. Regard for checks and balances should make us reluctant to go much beyond such extraordinary cases. But when a court acts without jurisdiction at the expense of critical constitutional values, presidential noncompliance coheres with our normal understanding of the biding effect of judicial decrees.
More affirmation of the consequent. Farber has not demonstrated that the courts lost their jurisdiction on habeas corpus at any point and neither have you. Taney, in fact, specifically addresses the issue of jurisdiction from the outset of his case and finds it to exist in the Judicial Act of 1789. Barring your discovery of a heretofore unknown repeal, alteration, or suspension of that act by Congress in 1861, it is physically impossible that the court could have lost its jurisdiction.
Farber's alleged refutation is as circular as your own. You cannot prove a point by affirming it as a consequent, capitan.
"But there is an important exception. A court that lacks the power to hear a case - lacks jurisdiction over the defendant or over the subject matter of the case - cannot give itself jurisdiction by fiat.
The court did not need to give itself jurisdiction in habeas corpus matters - it already had it from the Judicial Act of 1789 and that same jurisdiction had been upheld in Bollman. Lincoln, on the other hand, had the burden of proving that he could magically take the jurisdiction of the court away despite no evident constitutional mechanism for him to do so, seeing as the constitution gives jurisdictional control exclusively to congress.
"It probably goes too far to say that the president can always make his own independent determination of whether a court had jurisdiction.... But if the court's exercise of judicial power is a clear usurpation of authority over a case that it has no colorable claim to be hearing, or if the court's claim of jurisdiction invades some critical constitutional policy, then the president may not be obligated to obey. Regard for checks and balances should make us reluctant to go much beyond such extraordinary cases. But when a court acts without jurisdiction at the expense of critical constitutional values, presidential noncompliance coheres with our normal understanding of the biding effect of judicial decrees.
More affirmation of the consequent. Farber has not demonstrated that the courts lost their jurisdiction on habeas corpus at any point and neither have you. Taney, in fact, specifically addresses the issue of jurisdiction from the outset of his case and finds it to exist in the Judicial Act of 1789. Barring your discovery of a heretofore unknown repeal, alteration, or suspension of that act by Congress in 1861, it is physically impossible that the court could have lost its jurisdiction.
[cr dishonest quote of Farber ends with] Thus, a plausible argument can be made that during a suspension, the executive not only has a valid legal defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or release the prisoner."
Farber does not call it a refutation, but, after finding the necessity defense untenable, presents this jurisdictional argument more as a last ditch "Hail Mary."
Farber wrote, "Arguably, a valid suspension of the writ does eliminate the court's very power to proceed. ... a plausible argument can be made that during a [nc - valid, let us not slickly edit the word out] suspension, the executive not only has a valid defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or release the prisoner ... the strongest argument against the jurisdictional view of suspension isthat in practice it would leave the executive as the sole judge of whether the writ was validly suspended ... allowing the president to ignore an adverse ruling about the validity of the suspension is undoubtedly dangerous ... if this jurisdictional analysis is rejected, however, we should concede that Lincoln's action was unlawful. It is fruitless to argue for a general power of executive nullification. Lincoln himself did not even offer this defense, and history speaks strongly against it. Instead, we are thrown back on the necessity defense that he did in fact offer."