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[capitan_refugio] What Farber wrote specifically about the concept of "necessity" is shown here in this section about Jefferson: "Lincoln's invocation of necessity was not unprecedented. yada yada yada.

You only bloviate about the fact that the claim of "necessity" was not unprecedented. Jefferson wanted to suspend habeas corpus but did NOT succeed. THAT is the suspension of habeas corpus precedent.

What Farber says is quite clear:

Lincoln's action might suggest that he thought he had the general power to second-guess judicial orders. The argument in favor of such a presidential power has been pressed with great ingenuity, relying on the postulate that each coordinate branch of government is independent within its own realm. Thus, if the president may interpret the Constitution independently when he is considering whether to veto a bill, he should have the power to interpret the Constitution independently when he is exercising his duty to execute the laws. Judicial decrees are not self-executing; they often require the intervention of an executive officer such as a marshal. The president, then, must have the power to determine whether a decree is valid, in order to determine whether it is part of the law he must "faithfully execute" or contrary to that law.
This argument for executive nullification has not been well received, even among scholars generally hostile to judicial supremacy. Critics point out that Merryman is the only known instance where the president has actually disobeyed a court order merely because he disagreed with it. They also argue that "the available historical materials... at leaswt usggest that judgments are absolutely binding.... [J]udgments have always been thought of as final between the judicial department and the political departments." A contrary view would undermine the judiciary's position as a coordinate department, effectively reducing it to a mere adviser to the president, who would have the final say about the disposition of lawsuits. The "judicial power" would not amount to much if judgments could be overruled at will by the other branches. And the practical consequences are at least potentially chaotic, threatening a constitutional crisis any time the Court rules against the government in litigation. In this respect, executive nullification has similar vices to Calhoun's theory of state nullification.

Farber, page 188-9

Once an injunction is issued, it must be obeyed even if it was erroneous. A legal error in entering the injunction is no defense to a contempt citation. This is true even if the injunction violates a constitutional right. for instance, a court order that violates the First Amendment normally must be obeyed until it is set aside on appeal. Similarly, if a judgement is entered in one state, anotther state muct recognize that judgemnt as valid without inquiring into the merits of the case. Hence, even if Taney was wrong, his order was entitled to obedience. The incorrectness of Taney's view on the merits would be no defense in a contempt hearing.

Farber, page 189-90.

Some of Lincoln's initial acts were unconstitutional even under the relatively favorable view of his powers taken in this book. At least his unauthorized expansion of the regular army and disbursement of funds fall intothis category. Disobedience of Taney's order may fall into the same category, unless that order was a nullity.
There may well have been other unlawful actions. For example, Lincoln's suspension of habeas in areas removed from any hint of insurrection arguably went beyond his emergency powers to respond to sudden attack. And of course, not of the constitutional arguments in favor of Lincoln's actions during the war are incontestable. Some would argue that nearly everything Lincoln did in those early days was unconstitutional. Thus, to a small or greater extent, we are forced to consider Lincoln's claim that otherwise unlawful actions were justified by necessity.

Farber, page 192.

In short, on careful reading, Lincoln was not arguing for the legal power to take emergency actions contrary to statutory or constitutional mandates. Instead, his argument fit well within the classic liberal view of emergency power. While unlawful, his actions could be ratified by Congress it it chose to do so ("trusting , then as now, that Congress would readily ratify them").

Farber, page 194

Farber, of Berkeley, wrote that Lincoln's actions were admittedly unlawful but that they fit will within the classic liberal view, which explains why Farber and you cling to that view.

Congress did respond with legislation ratifying the president's military actions. Later, it augmented its support of the president with an immunity statute. an 1863 statute provided that "any order of the president, or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution... for any search, seizure, arrest, or imprisonment." The statute also gave the defendant the power to remove state litigation to federal court and provided a two-year statute of limitation (even if the case remained in state court) for any action brought against an officer acting "under color of" presedential or congressional authority.

Farber, page 194-5.

Thus, in the end, Congress ratified as much of the executive's actions as it could, excusing the lack of prior authorization, and tried to ensure a fair legal procedure for dealing with the remaining cases. Nowhere was there any thought that necessity alone gave the president an exemption from the legal consequences of violating statutory or constitutional requirements.

Farber, page 195

Congress ratified as much as it could. One thing it could NOT ratify were the suspensions of habeas corpus by military officers.

As we have seen, most of what Lincoln did, then and later, was in fact constitutional.

Farber, page 196

If most of what Lincoln did was constitutional, less than half was UNconstitutional. There is a comforting thought.