I do not understand your idea of sovereign executive power. The Supreme Court cannot be considered an authority that can overrule the President's judgment about what is necessary and Constitutional in order to accomplish the essential tasks of the President's office. On matters the President judges of fundamental importance, he is his own ultimate authority on the Constitutionality of his actions. The only recourse available in the Constitution is not a correction or restraint on him, but his removal from office. A sitting president bears the executive power of the sovereign American people in his person, and the ultimate responsibility for judgment as to the use of that power. If the Supreme Court can simply overrule his judgment about his own office, then he is the agent of the Court, and not the bearer of co-equal sovereignty.
The whole point was that Taney had ruled it was not for Lincoln to decide.
But the other whole point is that Taney can't decide for the President the limits and priorities of his office. Presidents can take council from the decisions of the judicial branch, may be well advised normally to presume that they are reliable guides of Constitutional interpretation, and are bound to enforce court decisions on the entities over which those decisions are sovereign. But those decisions cannot be sovereign over the sovereign executive power. Supreme Court decisions can, of course, exercise moral authority or rational authority over the President's judgment. But they cannot dictate it.
A president who violates his own fundamental judgment about what is necessary to fulfill his oath, because a judge tells him to, is unfit for his office. Lincoln had the most solemn responsibility to seek to fulfill his oath under the most reasonable and prudent understanding of his office that he could form. Neely's book makes it clear that this is what he did, however many particular judgments one might quarrel with. What he did not do, and could not do without violating his oath, was to place the responsibility for determining his duty in the hands of the Chief Justice.
And every quote I could find by the founders during debate always regards it as a legislative power - never an executive one.
It is clear enough that it is implicitly contemplated by the Constitution as being under the supervision or concern of the Congress to suspend habeus corpus -- the Congress being normally the body most concerned to guard civil liberties, I suppose. But it is, to me, more clear that the Constitution does not explicitly restrict the power to Congress, and that the duties of the executive -- of executive power in principle -- in time of crisis include a general responsibility that the national sovereignty not fail of its legitimate application because of merely implicit and technical considerations.
One can no doubt fret at great length about the danger of tyranny in such cases, but I find it a wholly abstract and impractical fretting.
A simple majority of congressmen could have assembled in days, enough to LEGALLY sanction Lincoln's actions if so desired.
The idea of a snap quorum of representatives from states that happen to be close to Washington raise such other, alarming questions as to make my general point in this whole discussion -- the Constitution envisions real men making real prudential judgments. Lincoln summoned a special session in what I consider to be clearly the shortest time he could reasonably have done so. In the meantime he attended to the manifest and pressing executive concern of maintaining the execution of the laws and the safety of the national capitol. Both before and after the special session was convened, he did what he thought was necessary to accomplish his oath, believed he was respecting the spirit and letter of the Constitution, and did not allow the fate of the national government to hang on legalistic technicalities. I think he did his job.
Here is what Neely quotes James Randall as saying on this point (page 13 of "The Fate of Liberty: Abraham Lincoln and Civil Liberties)referring to Lincoln's message to that special session:
"one may read [here], as it were, the President's mental struggling at the time the decision was taken. In this remarkable document may be seen the clearest indication that the appearance of military dictatorship was a matter of deep concern to the nation's war chief and that his action was determined by what he believed to be the imperative demands of the actual situation."
Neely goes on to say: "Randall denied that Lincoln needed Taney's criticism: 'As a matter of fact, few measures of the Lincoln administration were adopted with more reluctance than this suspension of the citizen's safeguard against arbitrary arrest.'"
Believe it or not, to an extent - I just happen to agree with you. I do hold that the courts can rule on the legality of an execution of powers (a la suspension of the writ of habeas corpus by executive), after all, there are checks and balances on each branch of government. Thomas Jefferson wrote that it "is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions".
Who stated in 1859 that the "people of these United States are the rightful masters of both Congresses and courts--not to overthrow the constitution, but to overthrow the men who pervert that constitution"? Abraham Lincoln, and he left out a branch.
But the other whole point is that Taney can't decide for the President the limits and priorities of his office. ... But those decisions cannot be sovereign over the sovereign executive power. Supreme Court decisions can, of course, exercise moral authority or rational authority over the President's judgment. But they cannot dictate it. ... What he did not do, and could not do without violating his oath, was to place the responsibility for determining his duty in the hands of the Chief Justice.
The courts cannot tell the President what to do - the congress, people, states and courts can correct any deficiences - they can tell him when he's wrong. Taney was not telling Lincoln how to run the war, he simply ruled that Lincoln was wrong in one area. Congress could have suspended the writ, and Taney would have been content - the Constitution had been followed. But holding the executive above reproach is the 1st step to tyranny.
It is clear enough that it is implicitly contemplated by the Constitution as being under the supervision or concern of the Congress to suspend habeus corpus -- the Congress being normally the body most concerned to guard civil liberties, I suppose. But it is, to me, more clear that the Constitution does not explicitly restrict the power to Congress, and that the duties of the executive -- of executive power in principle -- in time of crisis include a general responsibility that the national sovereignty not fail of its legitimate application because of merely implicit and technical considerations. One can no doubt fret at great length about the danger of tyranny in such cases, but I find it a wholly abstract and impractical fretting.
The founders had taken pains to prohibit the states (Article I, section 10), several of the same powers prohibited to the federal legislature (Article I, section 9). The Suspension clause in contained within Article I, not even mentioned in Article II. The clause is both a delegation and limitation of powers. Advocating that it applies to the Executive is just as ludicrous as stating that it applies to the judiciary. If the Executive is legally entitled to suspend the writ, why would Congress need to legislate approval?
Regarding fretting about it, in ex parte Milligan, Justice Davis commented thusly, "[t]he Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."
Either the Constitution means what it says, or why bother having a written Constitution?
The idea of a snap quorum of representatives from states that happen to be close to Washington raise such other, alarming questions as to make my general point in this whole discussion -- the Constitution envisions real men making real prudential judgments. Lincoln summoned a special session in what I consider to be clearly the shortest time he could reasonably have done so.
The idea of a quorum was written into the Constitution by the founders for a reason - to obviate the necessity of having every member present. As it was, a simple majority of Congressmen could have been assembled in days - enough to grant legislative sanctions to Lincoln's actions. In the age of trains and telegraphs, it's absurd to suggest that every member of Congress wait almost 2 and 1/2 months to convene if such an dire emergency existed.