Nicholas Quinn Rosenkranz: Obama Suspends the Law. What Would Lincoln Say?

The Obama administration announced last month via blog post that the president was unilaterally suspending ObamaCare's employer mandate—notwithstanding the clear command of the law. President Obama's comments about it on Aug. 9—claiming that "the normal thing [he] would prefer to do" is seek a "change to the law"—then added insult to constitutional injury. It also offers a sharp contrast with a different president who also suspended the law.

On April 27, 1861, President Lincoln unilaterally authorized his commanding general to suspend the writ of habeas corpus so that he could detain dangerous rebels in the early days of the Civil War. Lincoln's order was constitutionally questionable. The Constitution provides that "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

A rebellion was in progress, so suspension was permissible. But the Constitution doesn't specify who can suspend the writ in such circumstances. Since the Suspension Clause appears in Article I of the Constitution, which is predominantly about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.

Lincoln's order was legally dubious, but what he did next showed remarkable constitutional rectitude. On July 4, 1861, he delivered a solemn message to Congress, in which he did everything possible to square his action with the Constitution. In this message, he set forth the best possible constitutional arguments that he had unilateral power to suspend the writ. These arguments may have been wrong, but they were serious, and they were presented seriously, in good faith.

[lg]: He waited until the spring session ended, at the end of March 1861, and then he made his moves on Jeff Davis by sending men to reinforce Sumter...

[celmak]: Your equivocation of the fact that the Democrat slavers began shooting at Federal troops on January 9th, 1961 - months before Lincoln took office - makes your attempt at making President Lincoln the cause of the war dubious at best.

I've posted the following items in various separate posts before, but none of them to you.

You are perhaps forgetting that Major Anderson's soldiers fought with and overcame a ship's captain and hijacked his ship to take soldiers, wives, and supplies to Fort Sumter on December 26, 1860. When another group of Anderson's soldiers arrived at Fort Sumter earlier that day, they charged civilian laborers there with fixed bayonets to take control of the fort. Anderson's move to Sumter was against his orders and against the policy and the bargain made by President Buchanan with South Carolinian Congressmen not to change the situation in the Charleston forts.

War almost started in Charleston in December 1860 after Anderson’s move to Sumter, but cooler Southern heads prevailed. Here is how the people of Charleston reacted (from the Charleston Courier newspaper, as reported by the New York Times [italics as in the Times]):

The people were greatly incensed at the idea of a willful breach of those assurances of non action which had been volunteered by the Government at Washington and upon which so much reliance and confidence had been placed by the entire population, that every impulse to take the necessary precautions for their own safety had been restrained.

Instinctively men flew to arms. Orders were immediately issued to the following Companies to hold themselves in readiness for service: Washington Light Infantry, Capt. C. H. Simonton; Carolina Light Infantry, Capt. B. G. Pinckney; Meagher Guards, Capt. Ed. McCready, Jr.; altogether forming a portion of the Regiment of Rifles, commanded by Col. J. J. Pettigrew and Major Ellison Capers; also, to the Marion Artillery, Capt. J. G. King; Lafayette Artillery, Capt. J. J. Pope, Jr.; Washington Artillery, Capt. G. H. Walter; German Artillery, Capt. C. Nohrden; all under command of Lieut. W. G. De Saussure; Adjutant, Jas. Simmons, Jr.; Sergeant-Major, E. Prioleau Ravenel; Quartermaster-Sergeant, J. R. Macbeth; Surveyor, A Barbot: Surgeons, P. Gervais Robinson and Middleton Mitchel. Also, the Palmetto Guard, Capt. Thomas Middleton, and Cadet Riflemen, W. S. Elliot.

All the military forces thus ordered out promptly obeyed the summons, and the streets were soon enlivened by the appearance of individual members of the different organizations in their uniforms

The Times also reported that the Charleston Courier said:

Maj. Robert Anderson, U. S. A., has achieved the unenviable distinction of opening civil war between American citizens by an act of gross breach of faith.

Then again there was the Union sentry at Fort Barrancas in Florida who shot in the dark at a group of men (possibly a militia unit, I don't remember) approaching the fort, which they thought had been abandoned.

The Barrancas incident happened the night before January 9 incident you cited where Buchanan had sent 200 armed soldiers to Fort Sumter through South Carolina waters in a civilian ship, the Star of the West. The soldiers hid below decks on this ship to avoid being seen, but the word had leaked out that they were coming. The ship did not stop in response to shots across the bow, so then the SC guns fired at the ship itself, causing it to turn around and head back north. If someone is firing shots across your bow, the normal response would be to stop and find out why they wanted you to stop. But they were trying to sneak soldiers into Fort Sumter and didn't dare stop to be inspected.

By the way, lentulusgracchus is correct about Lincoln waiting until the spring session of Congress ended (actually the Senate, as the House had already adjourned). Here from the “Congressional Globe” on March 28, 1861, is documentation about the Senate checking with Lincoln to notify him that unless he has something to communicate with them, they were ready to adjourn:

Mr. Powell, from the committee appointed to wait on the President of the United States and notify him that unless he has some further communication to make, the Senate is ready to adjourn, reported that the committee had waited on the President, and had been informed by him that he had no further communication to make to the Senate.

That same day, March 28 [Klein, "Days of Defiance", page 358], Lincoln be instructed Fox to prepare an order arranging for the things necessary for the Sumter expedition, an expedition that his military advisors and cabinet previously said would result in a shooting war. Somehow possibly provoking a war was not important enough inform Congress and keep them in session? "Honest" Abe had not been honest with Congress.

Lincoln did not reconvene Congress until July after he had successfully maneuvered the country into war. On the other hand, Jefferson Davis reconvened his Congress on April 29.

Before the Northern fleet arrived at Charleston on April 11-12, 1861, Lincoln had met with various Republican governors to urge them get their forces on a war footing. Massachusetts was thus able to send troops to protect Washington one day after Lincoln called for them. General Winfield Scott called out the Washington militia a day or so before the attack on Sumter. Lincoln knew sending the fleet to Sumter would provoke a shooting war. IMO, that basically was his intention. That is why he planned his expedition to Sumter in secret and did not reconvene Congress until July. He did not want Congress to interfere with his plans.

IMO, Lincoln’s Sumter expedition was too small to work and appears to have been designed to fail. Lincoln sent an expedition of only 300 sailors and 200 troops, and he withdrew the most powerful ship from the Sumter expedition and sent it to Fort Pickens. His force in the Sumter expedition was well short of 5,000 regular army troops and 20,000 volunteers that General Scott said was needed to take and hold the fort or the 20,000 that Anderson advised.

On the other hand, sending an expedition too small to take and hold the fort might have been perfect if the objective of the expedition was to provoke a war that would gain the support of the North but not leave Fort Sumter as a Northern outpost that would have to be periodically/continually supplied and defended.

In mid March Lincoln had sent Ward Hill Lamon to South Carolina to let the governor know that Sumter would be evacuated. Seward was conveying the same message to the South Carolina Commissioners who had been sent to Washington to negotiate a peaceful separation and work out an equitable arrangement for the public debt and forts. That Sumter was soon to be evacuated was the official government line until April 8, when the news of Lincoln's approaching Sumter expedition was conveyed to the SC governor by a messenger from Lincoln. The SC Commissioners left Washington on April 11 charging the Lincoln Administration with "gross perfidy" over the Sumter evacuation.

Correction. The words "South Carolina Commissioners" in my post 21 should read "Confederate Commissioners." SC Governor Pickens had sent South Carolina Commissioners to negotiate with President Buchanan in December 1860. In early March, 1861 Jefferson Davis sent Confederate Commissioners to negotiate with Lincoln. Both efforts were unsuccessful.

Here were the authorized powers of the South Carolina Commissioners:

WASHINGTON, 28th DECEMBER, 1860.

Sir: We have the honor to transmit to you a copy of the full powers from the Convention of the People of South Carolina, under which we are "authorized and empowered to treat with the Government of the United States for the delivery of the forts, magazines, light houses and other real estate, with their appurtenances, within the limits of South Carolina, and also for an apportionment of the public debt and for a division of all other property held by the Government of the United States as agent of the confederated States, of which South Carolina was recently a member; and generally to negotiate as to all other measures and arrangements proper to be made and adopted in the existing relation of the parties, and for the continuance of peace and amity between this commonwealth and the Government at Washington."

Jefferson Davis sent three Confederate Commissioners to Washington to negotiate with President Lincoln. Lincoln would not meet with them. The Confederate Commissioners dealt with Seward, Lincoln's Secretary of State, through an intermediary. Here are the instructions of the Confederate Commissioners authorized by the Confederate Congress:

That said commissioners be further instructed to present to the Government of the United States assurances of the sincere wish on the part of this Government to preserve the most friendly relations between the two Governments and the States comprising the same, and to settle, by peaceful negotiations all matters connected with the public property and the indebtedness of the Government of the United States existing before the withdrawal of any of the States of this Confederacy; and to this end said commissioners are hereby fully empowered to negotiate with the Government of the United States in reference to said matters, and to adjust the same upon principles of justice, equality, and right.

So you go to the Democrat slaver NYT and Charleston Courier (which looks to be out of business, thank you.)? No Democrat slaver bias there (SARC)! Even so, let’s take what I think is your strongest point:

Maj. Robert Anderson, U. S. A., has achieved the unenviable distinction of opening civil war between American citizens by an act of gross breach of faith.

What was the breach of faith? That Anderson had Federal property destroyed? And it was Federal property in the first place; it did not get there by Democrat slaver means. And Anderson destroyed the property on his own when he was under President Buchanan; who, by the way, was a Democrat slaver himself and could have stopped the war that had already begun by the Rebel Democrat slavers. Even so, what Anderson did was not an act of war; but the firing of artillery upon him was. Democrat slavers started the war.

So I see you concede that Lincoln did not begin the war; but what you post is that he was devious in continuing it. War is hell. IMO, from the beginning, Lincoln should have been more aggressive in ending it. He made a mistake in having himself surrounded by people who were sympathetic to the Democrat slavers; much like today’s RINO’s. This prolonged the war way more than it should have. Instead he should have surrounded himself with General Shermans. All out war, like the likes of General Sherman, always cuts casualties and abbreviates lengths of war. Got to hand it to the Rebel Democrat slavers, they did it before Sherman on many occasions. Democrat slavers did everything to win the war.

Let me say here that I am a firm believer in the right of secession – if done properly, and for the right reasons; but the Democrat slavers of the War of the Rebellion did it the wrong way for all the wrong reasons. Those Democrat slavers have not changed for the better either; now they are proud anti-God, anti Bible, slaughter the unborn by the millions, etc. Democrat slavers have had a history of evil from their beginning. Think about it; you are defending Democrat slavers of today by defending the Democrat slavers’ history.

What was the breach of faith?

Perhaps the link below might help you understand about Buchanan's promise of not changing things in Charleston Harbor, a promise discussed in his cabinet meeting. By moving to Fort Sumter Anderson in effect broke Buchanan's promise and Anderson's last instruction from the Secretary of War (dictated by Buchanan). Link.

Here is how Buchanan reacted to the news that Anderson had moved to Fort Sumter [Source: Klein, "Days of Defiance"]:

Buchanan slumped into a chair. "My God!" he cried wearily. "Are calamities ... never to come singly! I call God to witness -- you gentlemen better than anybody else know that this is not only without but against my orders. It is against my policy."

So you go to the Democrat slaver NYT and Charleston Courier (which looks to be out of business, thank you.)? No Democrat slaver bias there (SARC)!

LOL. Perhaps you don't know that the New York Times was a thoroughly Republican newspaper back then or that on many matters the Republican and Democrat Parties (and the NY Times) have switched political philosophies, with the exception of race, since those times.

FYI, Lincoln's two secretaries Nicolay and Hay said it best and gave away who really started the war [ Source: Nicolay and Hay in their book, "Abraham Lincoln, A History, Volume 4". Thanks for the source, phi11yguy19, wherever you are]:

President Lincoln in deciding the Sumter question had adopted a simple but effective policy. To use his own words, he determined to "send bread to Anderson"; if the rebels fired on that, they would not be able to convince the world that he had begun the civil war."

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