*Is it possible for Abraham Lincoln to have pursued acts of war without legislative (i.e. Congressional) approval ?
I am researching this and have found conflicting opinions.
What does the SDMB have to say ?
Lincoln didn’t consider it to be a “war” – that is, against a foreign country. Lincoln, Congress, the Supreme Court, whatever, believed the Confederate states to be “in rebellion”, refused to accept their claim that they had the right to secede, and treated it like an insurrection.
Lincoln did a number of things that were constitutionally shady (like suspending habeous corpus). Congress usually backed him up with his conduct of the Civil War.
I would say Lincoln’s decision over the Habeas Corpus writs was one of the most easily defended on Constitutional grounds.
I think the important concern, at the time, was whether or not Congress would put up the funds to put down the rebellion. They did this, which is at least implicit agreement to the idea that there was a rebellion, and the it needed putting down from the North’s perspective. (Implicit consent is not enough under the War Powers Act: it must be explicit, through a declaration of war; but that is an anachronistic concern.) Given the vagueness of the Constitution and a lack of contemporary laws to the contrary, I’d say Lincoln was well within his rights as Commander-in-Chief. Now, there might have been some laws of the time that I’m unaware of, so don’t take what I say as gospel or you will be thrown out of bible class.
The War Powers Act hadn’t been thought of in 1861. And that Act has never been tested in the Supreme Court AFAIK.
Lincoln got away with a lot during the Civil War, including authorizing the payment of money from the Treasury to private people without securing Congressional approval. That would be very hard, if not impossible, to defend today.
We’re about to have guests over so I can’t spend the time to research this myself…
I don’t remember what it was for but I thought the Supreme Court handed down a ruling Lincoln didn’t like and he seriously considered (or at least joked about) having them arrested.
Any truth to that story?
I think that case was * Ex parte * Merryman where the Taney Court ruled that a general had to produce a Confederate POW for a trial. Lincoln blew off the decision.
It was later enforced in 1866 in Ex Parte Milligan, when the Supreme Court ruled that you can’t have military courts running if the civilian courts are also running.
The Supreme Court did back Lincoln in the Prize cases, when it in effect ruled that a president didn’t need a formal declaration to start a war domestically.
Remember–the Confederacy fired first. At Fort Sumpter.
Lincoln was perfectly within his rights as President to order military reprisals against anybody who attacked the United States—without needing Congressional approval.
Um… anybody want to tackle the issue of posse commitatus? I know, insofar as its law, that this too is an anchronistic concern… but I seem to recall (sans research) that there was a common-law basis to posse commitatus.
Or am I hitting the cough syrup too heavy?
- Rick