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.
Farber, page 192.
fortheDeclaration, caught fabricating his non-"facts" yet again. Yet another false citation of a source.
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.
"It may seem that Lincoln violated the rule of law in his effort to vindicate the legal order. Much of this apparent paradox dissolves on closer examination, partly because most of his actions were indeed lawful, and partly because the rule of law in not an inflexible concept. Yet, a subtler paradox persists. The rule of law is usually contrasted with the 'rule of men.' But at least in a time of crisis, maintaining the ideals of the rule of law depends in a crucial way on the character and courage of society's leaders.
"As we have seen, most of what Lincoln did, then and later, was in fact constitutional. he was correct that secession was unconstitutional, a revolutionary act rather than a legitimate exercise of state sovereignty. He was also correct that, in actual areas of war and insurrection, he had emergency power to suspend habeas and impose martial law. This is not to say everything he did was constitutional. Military jurisdiction was extended beyond constitutional bounds in the North; money was spent and the military expanded without the necessary authority from Congress; and freedom of speech was sometimes infringed. Not a perfect record, but a credible one, under incredibly trying circumstances." (p 196-197)
He later continued:
"Most of Lincoln's emergency actions fell within a much narrower power to suspend the normal legal process in the actual vicinity of war or insurrection, where the authority of the government was challenged by forces too strong for the conventional legal system to control. This narrower power was still subject to abuse, with unnecessary harm to civil liberties, but it was confined to areas where force had already displaced law as the operative principle. The fact that Lincoln acted under narrower powers does not disprove the existence of broader ones, but it does not support them either....
"Lincoln's form of nationalism remains relevant for us today.... In interpreting the very real role of states in the constitutional scheme, we must not forget that the primary purpose of the constitution was not to enshrine state sovereignty but to create 'a more perfect Union.' As Lincoln recognized, the Constitution was an exercise in nation building." (p 197-198).
These were lessons that Taney, Calhoun, the fire-eaters, and the confederate leadership were unable, or unwilling, to understand.