Skip to comments.Nicholas Quinn Rosenkranz: Obama Suspends the Law. What Would Lincoln Say?
Posted on 08/19/2013 9:27:39 AM PDT by don-o
The Obama administration announced last month via blog post that the president was unilaterally suspending ObamaCare's employer mandatenotwithstanding the clear command of the law. President Obama's comments about it on Aug. 9claiming 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.
(Excerpt) Read more at online.wsj.com ...
That much is true. I've posted about it before. From the Richmond Daily Dispatch (VA) of February 11, 1861: The Massachusetts Military.
Boston, February 7.
--Military orders promulgated to-day by the Commander-in-Chief are prefaced as follows:
"The present condition of national affairs renders it possible that the services of the volunteer military of Massachusetts may be required at no distant day, and at short notice, by the President of the United States for the defence of the Federal capital, and it is the desire of his Excellency, the Governor, and Commander-in-Chief, that the troops be in readiness for any legal requisition that may be made upon them."
The orders apply more directly to the First Division, and require rigid scrutiny of company rolls, frequent company drills, and a thorough preparation for active service.
He also urged the other New England governors to mobilize well before Lincoln became president. The troops were ready to go and no secret meeting was necessary.
Necessary or not, Lincoln did hold secret meetings with Republican governors to get troops ready.
Many of the Republican Governors are here to stiffen the backbone of Mr. Lincoln, and to brace him up to the bloody work before him. No fewer than nine of these men were in secret conclave last night. Their proceedings were kept as secret as those of the Star Chamber or Council of Ten. [Source: the Brooklyn Eagle, April 6, 1861, Link]
The New York Herald, of the 6th inst., gives accounts of what is going on in this way, in anticipation of a coercive policy on the part of the Washington administration. It says that on the 5th inst., Gov. Curtin, of Pennsylvania, besides being closeted with Lincoln for an hour, had an interview with Secretary Cameron and Gen. Scott, and at 11 o'clock that same night had a private interview with one of Gen. Scott's confidential officers. There is no doubt, it adds, that Pennsylvania will be put upon a war footing immediately.
Massachusetts is said to have six thousand six hundred and seventy men, all equipped and ready to march at twelve hours notice. Among them, says the Herald, are two flying artillery batteries, almost as expert in drill as the best regulars, and several dragoon and cavalry corps, not surpassed in efficiency by any in the volunteer militia in the United States. The infantry troops are well drilled.
New York State, according to the same authority, is pledged to furnish ten thousand men at forty-eight hours notice, and other States in proportion. [Source: The April 11, 1861 Daily Picayune of New Orleans reporting on an earlier report in the New York Herald]
April 6, 1861. Governors of Indiana, Ohio, Maine, and Pennsylvania confer with President about military status of militia. Reported in the Baltimore Sun, 9 April 1861 [Source: The Lincoln Log]
... we have reliable information to the effect that a number of Black Republican Governors have been in recent secret conclave with the President of the United States, the evident intent of which was a conspiracy against the rights and liberties of the South, of which we form a part, as proven by the recommendation of a war bill by the Governor of Pennsylvania, who was one of them, and the immediate passage of the same by the Legislature of that State ... [Source: The Richmond Daily Dispatch, April 17, 1861]
[Me]: Massachusetts was thus able to send troops to protect Washington one day after Lincoln called for them.
[You]: So far as I can tell it was two days.
Here are some reports on Massachusetts troops:
The Sixth Massachusetts Regiment was the first to march in response to Lincoln's call for 75,000 troops. They left Lowell, Mass. on the morning of April 16 [one day after Lincoln's call for them], completely equipped and organized. It had a full band and regimental staff. [Source: "Baltimore and the Nineteenth of April 1861," by George William Brown]
Gov. Andrews to-day telegraphed to the President. The quota of troops required of Massachusetts is ready; how will you have them to proceed? [Source: New York Herald, April 16, 1861]
Three days after the distressed presidents call, some 475 Pennsylvanians, comprising the ranks of five volunteer militia companies, arrived in the nation's capital. [Link].
[Me]: General Winfield Scott called out the Washington militia a day or so before the attack on Sumter.
[You]: I'm not sure what that would have entailed. How big would Washington militia be? And why is that any sort of a problem?
There were ten companies of Washington militia, I believe. Probably prudent planning by Lincoln and Scott. They were not sure how some of the population would react to the probable battle at Fort Sumter.
No commander-in-chief wants legislators meddling in real-time military or diplomatic maneuvers, if he can help it.
I am somehow reminded of LBJ and his minions interfering with military operations during the Vietnam War.
But this is a bit confusing. It was the most momentous moment in the country's history and Congress wasn't in session? They adjourned for some reason or other of their own and you'd expect Lincoln to summon them back into session to interfere in a delicate situation?
Here I am reminded of Carl Schurz's April 5, 1861 letter to Lincoln. Basically Lincoln had earlier told Schurz if Lincoln called an extra session of Congress, some in Congress might have called for peace and compromise. Couldn't have that. Here is an excerpt from the letter.
Some time ago you told me, that you did not want to call an extra-session of Congress for fear of reopening the compromise-agitation. You were undoubtedly right then. But any vigorous act on the part of your Administration, any display of power and courage will remove that danger. If you first reinforce the forts and then call Congress together, the enthusiasm of the masses will be so great and overwhelming, that Congress will be obliged to give you any legislation you may ask for. You will be master of the situation, and supported by the confidence of the people, the government will be stronger than it ever was before. [Source: April 5, 1861, letter from Carl Schurz to Lincoln, bold mine, letter found by poster southernsunshine, Link to the letter]
The lie was made to the public after he gave in to several of his cabinet members to keep three of them from resigning. He had already lost two cabinet members in the previous month and was about to lose two others to scandals. The loss of three more would have meant his government had collapsed. I'm not excusing Buchanan. I'm just reporting what went on.
I have cited Stanton's letter and Holt's confirmation of its contents in the past as proof that Buchanan had indeed made the promise about the forts that some of the Northern posters on these threads have said he didn't make and have pointed to his public statements made after these cabinet meetings to refute claims that he ever made the promise.
And Buchanan, the Democrat slaver President didnt bother to dismiss Anderson, the man who supposedly was responsible for the war.
Buchanan argued that Anderson should leave Fort Sumter go back to Fort Moultrie, but IIRC the Northern cabinet members (and SC Governor Pickens) said "No deal."
Totally unbelievable [that the NY Times was Republican] considering the NYT article you source is so sympathetic to the Democrat slavers cause.
I assure you that I am correct. Perhaps your comment is based on how today's liberal newspapers and liberal TV channels usually report only one side one side of the news (their side) and present a slanted interpretation of the news. That bias is no longer on just the editorial pages. The slant in today's liberal newspapers can be seen in the news they ignore, the news they decide to print, and where in the paper they print items unflattering to their side, if they choose to print them at all.
The old New York Times of the 1860s did report what was going on in other parts of the country, hence their reporting of an article from the Charleston Courier about the situation in Charleston. It doesn't mean that the NYT supported what the other newspaper said. It means, however, that the readers of the Times of that period were informed about attitudes and happenings in other parts of the country. That is useful reporting. The editorial page was still slanted pro-Republican.
Yeppers, Ill agree with you somewhat there; except they have not switched; both Parties have gotten worse. The Republicans have grown spineless in support of their philosophy; with the exception of most Tea Party members.
There is truth in what you say.
I repeat, think about it; you are defending Democrat slavers of today by defending the Democrat slavers history.
Only if it fired its guns, which it didn’t until the confederati started the war.
The slave power had attempted to prevent Lincoln’s inauguration by starting and taking over several militia companies. Loyal US army officers wrote up a loyalty oath, and went around to the various militia companies, asking the officers to swear loyalty, in front of their men. Where they didn’t, the company was disbanded, and the federal weapons retrieved, for issue to a loyal militia company.
It was only because of the loyal militia companies and the find work by US Army officers that Lincoln was inaugurated.
Buchanan’s statement was ambiguous, and his orders gave Anderson latitude.
Anderson took advantage of the latitude to prevent his men from being shot in the back.
Didn’t say it was all milk and honey; only that the terminology was wrong and Lincoln was not the ‘leader’ he’s been propped up as.
Now as to the first shot. The question would be...why? From my memory, S.C. ordered the area evacuated of the Fed. gov’t, some blow-hard Fed capt/general occupies the fort, Fed. gov’t attempts to reinforce said capt/general...SHTF time.
As to your 2nd point: there were more than enough ‘atrocities’ to go around.
You repeat me, sir.
Since the Confederacy lost, Lincoln was within his authority?
The parallels to then are now are striking. You presume, since no one is ‘complaining’, the President can do what they wish?
Unless you can show evidence that he wasn't.
The parallels to then are now are striking. You presume, since no one is complaining, the President can do what they wish?
The parallels between now and then are non-existent.
And what gave South Carolina the authority to order federal troops from a federal facility?
...some blow-hard Fed capt/general occupies the fort...
A fort under Major Anderson's command, and which he moved to in the face of real threats from the South Carolina mob/militia.
...Fed. govt attempts to reinforce said capt/general...
Since the option was being starved into surrender then why are you surprised the federal government tried to resupply?
Said poo being deliberately flung at the fan by the Confederacy then they are responsible for all the death and destruction that followed.
When you state "Not true" to my comment "think about it; you are defending Democrat slavers of today by defending the Democrat slavers history", it infers somewhat of an answer to my question; but it is not a direct answer to it and is without explanation.
The Democrat Party has had and still has this evil slavery mentality which it has not turned away from before the Civil War; and it is worse now than before. If the Democrat slavers had gotten away from this mentality, I could see why you would say "Not true", but it is true because, like I stated, The Democrat Party has had and still has this evil slavery mentality which it has not turned away from before the Civil War; and it is worse now than before. They may claim that they abhor the likes of the slavery of old, but in reality they just use different methods for the same means; some more ruthless then that of the 1800s. So, it is true that you defend the Democrat slaver Party as a whole, the whole being how they were and how they are (worse) today.
So I will ask one more time; "Before I respond to anything else, I have but one question for you; why would you want to defend the Democrat slavers of then and now? And please explain your answer. "
No, they didn't. Don Carlos Buell had given unauthorized verbal suggestions to Anderson when he delivered Floyd's first set of orders to Anderson earlier in December. When Buchanan learned about Floyd's earlier orders he had Floyd send additional instructions that made the orders much clearer. The book "Don Carlos Buell: Most Promising of All" by Stephen Douglas Engle explains how Anderson reacted to Buchanan's later orders transmitted by Floyd:
When Anderson received the secretary's latest words of guidance [rb: the order Buchanan told Floyd to send], he became furious. Buell's message had allowed Anderson to decide for himself when and how to act. Now the administration was drawing back.
Anderson no longer believed he had orders that allowed him to make the move to Sumter. If he thought he already had such approval, he wouldn't have wired Washington on December 22 saying:
I think that I could, however, were I to receive instructions so to do, throw my garrison into that work [Sumter], but I should have to sacrifice the greater of my stores as it is now too late to attempt their removal. [Link]
He got no such instructions. That is why Buchanan said Anderson's move was against his orders.
In his December 31 letter to Messers Barnwell, Adams, and Orr Buchanan recapped the orders given to Anderson by Buell:
"You are carefully to avoid every act which would needlessly tend to provoke aggression; and for that reason you are not, without evident and imminent necessity, to take up any position which could be construed into the assumption of a hostile attitude. But you are to hold possession of the forts in this harbor, and if attacked you are to defend yourself to the last extremity. The smallness of your force will not permit you, perhaps, to occupy more than obey of the three forts, but an attack on or attempt to take possession of either one of them will be regarded as an act of hostility, and you may then put your command into either of them which you may deem most proper to increase its power of resistance. You are also authorized to take similar defensive steps whenever you have tangible evidence of a design to proceed to a hostile act."
Buchanan continues by saying, "Under these circumstances it is clear that Major Anderson acted upon his own responsibility, and without authority, unless, indeed, he had "tangible evidence of a design to proceed to a hostile act" on the part of the authorities of South Carolina, which as not yet been alleged..."
In his January 5th letter to Colonel Cooper, the Adjutant General, Major Anderson stated, "The more I reflect upon the matter the stronger are my convictions that I was right in coming here. Whilst we were at Fort Moultrie our safety depended on their forbearance..." The fact of the matter is that while he was in Moultrie, Anderson's force was in danger. He believed, and had every reason to believe, that he had sufficient tangible evidence that hostile designs were planned against him. Nowhere in his orders are instructions to sacrifice his command; exactly the opposite. Anderson's move to Sumter was in keeping with Buchanan's instructions.
This is your tautology, but repetition does not cure your truth deficit, or the weakness of your argument, which consists mostly of ad hominem attacks, moral complaints (which can never, ever be met, and are the sure sign of an implacable opponent), and other appeals to motive in lieu of argument.
So I see you concede that Lincoln did not begin the war
Actually, he did nothing of the sort, but rather the opposite. Your saying so does not make it so.
War is hell. IMO, from the beginning, Lincoln should have been more aggressive in ending it.
Having unfairly claimed the palm of success in argument, you now cast it aside and concede precisely what rustbucket and I have charged, that Lincoln was at war from the moment of his election and came to office with a war plan in his vest pocket and deceit on his lips. Indeed, he had already to his credit sedition, subversion, and the coup d'etat in Missouri, in furtherance of his WAR aims: for if he did not plan, and was not furthering, the outbreak of a great war, his Missouri machinations would have been bootless, and even anathema to him, or to any man whose concern was peace and conciliation.
Your main complaint about Lincoln seems to be that he was not ruthless enough, a complaint that is mooted the by heaping up of nearly 1,000,000 dead, civilian and military, in the ensuing four years -- not counting men who, like Joshua Chamberlain, died of their wounds years after they were inflicted.
Which happens to have been exactly correct. Answer the charge, don't just snark at the source. Ad hominem attacks add nothing to the discussion.
Were the commissioners correct or not, when they said that Lincoln had toyed with them and misled them? Given the facts under discussion, it's hard to fault their reasoning. Or do you have a discovery that will change reasonable people's minds?
You're descending into mysticism and claims of clairvoyance.
Their reclaimed sovereignty taken by force at Yorktown and later granted by George III in the Treaty of Paris of 1783, which was granted to the States severally and individually, South Carolina being specifically named and enumerated among the States thus created Sovereigns in law as well as fact.
Their resumption of their unified Sovereign powers by secession gave the Carolinians all the authority they needed to demand anything of anyone on their soil, under the terms of their own state constitution.
If you think a sovereign government does not have powers of taking in cases in dispute, just try your argument out on the Enforcement Division of the IRS and DoT.
Their resumption of their unified Sovereign powers by secession gave the Carolinians all the authority they needed to demand anything of anyone on their soil, under the terms of their own state constitution.
In other words, nothing.
What is slavery? It's compulsory labor under terms refused by cockroaches. It's an ancient system of captive labor, disastrous to anyone who falls into it, sells himself or family members into it (as ancient Germans who had lost their freedom through gambling addiction were said to do, to pay their debts), or is condemned by a court to endure in consequence of one's crimes and debts. It is likewise injurious -- as any undercompensated labor is, free or bond -- to anyone who works for a living wage.
That's what it is. It is the worst possible labor system for people who work, but it was legal and pervasive in 1861, and banned in only one or two visionary countries whose economies, by the way, were not substantially reliant on it.
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