And yet the Supreme Court cites the Militia Act is saying that the president was authorized to put down the rebellion.
"The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But, by the Acts of Congress of February 28th, 1795, [The Militia Act] and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States."
--Majority Opinion, The Prize Cases
Walt
We were discussing insurrection, not a state of war. The Supreme Court said it was a state of War and that Lincoln was able to use the War Powers.
As you quote, the Supreme Court did say the following, quite accurately but not quite completely:
"But, by the Acts of Congress of February 28th, 1795, [The Militia Act] and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States."
It is 100% true that by the Act of 1795 he is authorized to call out the militia... to suppress insurrection.
Here, read it yourself:
Section 1 of the Militia Act of 1795 states "in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the Executive, (when the legislature cannot be convened,) to call forth such number of the militia of any other state or states, as may be applied for, as he may judge sufficient to suppress such insurrection."
Article IV, Section 4 of the Constitution says,
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
The duplicated language can leave no doubt that the Militia Act of 1795, regarding insurrection, was following and complying with Article 4, Sec 4 of the Constitution. Authorization to suppress insurrection, under this Act, is expressly conditional upon application by the State.
Lincoln was asserted to have the War Powers authorizable under U.S. Const. Art 1, Sec 15.