Is that why he invaded the South?
"There is another precedent to consider, the case of Luther v. Borden, 48 U.S. 1 (1849) (USSC+) which dealt with occurrences during Dorr's Rebellion in RI in 1842. During that "Rebellion," there were two entities in RI that claimed to be the lawful state government.
In Luther v Borden, the court ruled that President has the power to decide [which] government of the state is in fact legitimate, and that the Courts have no authority to overrule the President's decision either during the crisis or after the fact. The court noted that:
" Undoubtedly, if the President in exercising this power, shall fall into error or invade the rights of the people of the State, it would be in the power of Congress to apply the proper remedy."
Now, clearly it is possible for a situation to exist where a state has no legitimate government - that is, an interregnum exists. During such a period there may be zero, one, two, or more than two entities claiming to be the legitimate government, but in fact none of them are legitimate.
Since the President has the power to decide which of two (or more) claimants is the legitimate government, the President must have the power to decide that *none* of the claimants is the legitimate government.
I submit that this is what Lincoln did in 1861. Having exercised his power to determine that no lawful government existed in the so-called seceded states, he then used the powers vested in him "as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States" to suppress the actual and armed rebellion.
Thus, Lincoln had the power to act without waiting for a request from a Governor or State Legislature. And Congress fully supported Lincoln in doing so."
-- from the ACW moderated newsgroup.
Walt
That's a lot of power to give to one man. I wonder...who gets to make the determination that no lawful government exists in Washington?
Wrong. The Executive does not have the power to decide that none of the claimants is the "legitimate" government - he must recognize one of the sides as the legitimate government.
"By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere is given to the President. He is to act upon the application of the legislature or of the executive [of the state in question], and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act. The fact that both parties claim the right to the government cannot alter the case, for both cannot be entitled to it. If there is an armed conflict like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government and which party is unlawfully arrayed against it before he can perform the duty imposed upon him by the act of Congress."
Chief Justice Taney, Luther v. Borden, 7 How. 1 (1849)
Thus, Lincoln had the power to act without waiting for a request from a Governor or State Legislature.
"[U]pon the application of the governor under the charter government, the President recognized him as the executive power of the State."
"It is the second clause in the same section [Militia Act of 1795] which authorizes the call to suppress an insurrection against a State government. The power given to the President in each case is the same, with this difference only, that it cannot be exercised by him in the latter case except upon the application of the legislature or executive of the State."
Chief Justice Taney, Luther v. Borden, 7 How. 1 (1849)
-- from the ACW moderated newsgroup.
I'd get away from relying on newsgroups. Moderated or not.