Be it enacted, &c., That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose to such officer or officers of the militia as he shall think proper. And, 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.
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such State, or of any other State or States, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.
[Walt]
Yes, the laws had "failed of execution" in the south, is the way I believe the president put it.That triggers section 2, and as the Court said, the president is authorized to act under the act of 2/28/1795 -- the Militia Act.
All your verbose excuses fail besides the clear words of the Prize Cases ruling.
[T]he laws had "failed of execution" in the south, is the way I [Walt] believe the president put it. The way Section 2 of the Militia Act puts it is, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by this act....
Lincoln did not call up the Militia to assist the Marshals of the courts. This assinine excuse for a legal argument is so irrelevant that the court did not even see fit to make the slightest reference to Section 2 of the Militia Act of 1795.
Daniel Farber wrote an entire book, Lincoln's Constitution, in which he tried to defend most of Lincoln's acts (although even he conceded that some of the acts could not be defended). He also did not make any reference to Section 2 of the Militia Act of 1795.
You never provide any citation to anything when making this assinine assertion because no legal authority would even consider making this goofy argument.
[Walt] That triggers section 2, and as the Court said, the president is authorized to act under the act of 2/28/1795 -- the Militia Act.
Again, you must pervert what was said and supply your words in preference to what was actually said.
The court said absolutely nothing about Section 2 of the Militia Act of 1795. The court did not even refer to Section 2 of the Militia Act. The court referred to Section 1 of the Militia Act and only to recite what he is authorized to do pursuant to the Act. The Court simply restated that the President may call out the militia "in case of invasion by foreign nations, and to suppress insurrection." The Act itself spells out the differing requirements to calling out the Militia in response to invasion or insurrection.
REALITY CHECK: "But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to call 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." ~The Prize Cases~
I prefer to discuss what SCOTUS actually said, rather than to discuss your inaccurate paraphrase. The President may act alone in case of invasion, whether by a foreign nation or by states in rebellion. However, in case of insurrection, action pursuant to the Militia Act requires a state request. What are you going for, Walt? Invasion that did not require a state request, or insurrection that did require such request?
Specifically, SCOTUS partially restated the clause that says: "And, 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."
The Militia Act is not involved with the holding in the decision. SCOTUS was extracting Lincoln's chestnuts from the fire. SCOTUS was addressing the question of a blockade which led to the seizure of foreign ships and their cargo. One does not blockade in an insurrection, one closes the ports. A blockade is an act of war. SCOTUS found a war to exist. The ruling explicitly states that the authority to institute the blockade and make it lawful was jus belli or the laws of war.
SCOTUS did --NOT-- apply the Militia Act to the facts of the instant case and find it to have any relevance
Lincoln had cited the Militia Act. SCOTUS incompletely stated the content of the Act, not wanting publicly to make Lincoln look like a fool. That does not change the content of the Act.
[Walt] All your verbose excuses fail besides the clear words of the Prize Cases ruling.
No. All -your- lame excuses and misstatements of the case fail when confronted by the clear words of the Prize Cases ruling. Read it again. Keep reading it until it penetrates. The Court ruled "the President had a right Jure Belli. Jure Belli = The Law of War, not the Militia Act of 1795.
The Militia Act of 1795 was irrelevant to the Prize Cases. Lincoln proclaimed and instituted a BLOCKADE. The Prize Cases concerned the legality of a BLOCKADE.
AGAIN, HERE IS HOW THE COURT ACTUALLY RULED:
THE QUESTION:Mr. Justice GRIER.
There are certain propositions of law which must necessarily affect the ultimate decision of these cases, and many others, which it will be proper to discuss and decide before we notice the special facts peculiar to each.
They are, 1st. Had the President a right to institute a blockade of ports in possession of persons in armed rebellion against the Government, on the principles of international law, as known and acknowledged among civilized States?
THE SUPREME COURT RULING ON THAT QUESTION:
On this first question therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard.
"The president had a right, jure belli...."
The president had a right pursuant to the laws of war....
HAD THE PRESIDENT A RIGHT TO INSTITUTE A BLOCKADE?
YES, PURSUANT TO THE L-A-W-S O-F W-A-R.
That's what he did.
Walt
"...and to cause the laws to be duly executed."
Loyal Union men, of whom President Lincoln said, "no partizan cause could make false to the nation's life", ensured that the laws were "duly executed."
I mean, the rebellion did collapse, didn't it?
Walt
The Supreme Court ruled that the president was empowered under the Militia Act to call out the Militia, based on the events of early 1861.
See the Prize Cases ruling.
Walt