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In a previous question I made the statement that Lincoln "usurped" his war powers during the civil war. This statement was controversial and elicited thoughtful comments. I thought I would open up a new question to ask, Did Lincoln "usurp" his war powers? Did he use the military to take these powers and maintain these powers from the checks and balances built into the Constitution by use of the Military?

Here is my research.

What does usurp mean

Merriam Webster's Definition of Usurp - to seize and hold (office, place, functions, powers, etc.) in possession by force or without right.

Background - Extraordinary Times

The previous government of President James Buchanan was frozen in the face of insurrection. Before Lincoln James Buchanan believed the union had no legal right to stop succession and even publicly sided with the Southern secessionists in an address to Congress.

James Buchanan
Buchanan denied the legal right of states to secede but held that the federal government legally could not prevent them. He placed the blame for the crisis solely on "intemperate interference of the Northern people with the question of slavery in the Southern States", and suggested that if they did not "repeal their unconstitutional and obnoxious enactments ... the injured States, after having first used all peaceful and constitutional means to obtain redress, would be justified in revolutionary resistance to the Government of the Union.

Buchanan's administration was rife with southern sympathizers.

The James Buchanan's secretary of war John B. Floyd, was a former Governor of Virginia, and future Confederate General, who used his time as the Nation's Secretary of War to prepare the South for secession. Floyd transferred arms to southern armories in order to facilitate their capture and use by the south.

The Memoirs of General Ulysses S. Grant:
chaptrer XVI: The Coming Crisis

Meanwhile the Administration of President Buchanan looked helplessly on and proclaimed that the general government had no power to interfere; that the Nation had no power to save its own life. Mr. Buchanan had in his cabinet two members at least, who were as earnest—to use a mild term—in the cause of secession as Mr. Davis or any Southern statesman. One of them, Floyd, the Secretary of War, scattered the army so that much of it could be captured when hostilities should commence, and distributed the cannon and small arms from Northern arsenals throughout the South so as to be on hand when treason wanted them. The navy was scattered in like manner. The President did not prevent his cabinet preparing for war upon their government, either by destroying its resources or storing them in the South until a de facto government was established with Jefferson Davis as its President, and Montgomery, Alabama, as the Capital. The secessionists had then to leave the cabinet. In their own estimation they were aliens in the country which had given them birth. Loyal men were put into their places. Treason in the executive branch of the government was estopped. But the harm had already been done. The stable door was locked after the horse had been stolen.

Between the time President Lincoln is elected and he takes office the first seven states seced.

               Lincoln is elected                November 6, 1860

     1         South Carolina:                   December 20, 1860
     2         Mississippi:                      January 9, 1861
     3         Florida:                          January 10, 1861
     4         Alabama:                          January 11, 1861
     5         Georgia:                          January 19, 1861
     6         Louisiana:                        January 26, 1861
     7         Texas:                            February 1, 1861

               Lincoln takes oath of office      March 4, 1861
               Battle of Fort Sumpter            April 11, 1861
               John Merryman is arrested in Md   May 25, 1861
               Constitutional Crisis between
                  Lincoln and Supreme Court      May 28, 1861                                  

What Powers are we calling Lincoln's War Powers?

Specifically:

( removed Right to Declare war, as Lincoln was arguable empowered to call up State Militia's to put down insurrections by the Militia Act of 1795 see page 163 )

  • the right to borrow, budget and spend money without Congressional Approval
  • to ignore the judiciary including the Supreme Court
  • suspension of freedom of speech in boarder states (Maryland)
  • suspension of freedom of press in boarder states (Maryland)
  • the imprisonment of rebel sympathizers
  • the imprisonment of northern dissidents
  • banish / deport citizens over speech offenses

    Civil Liberties in Crisis
    Public affirmation of the Confederacy and its leaders could lead to arrest. After William Kelley toasted Jefferson Davis, he was arrested for “treasonable language,” while Richard Warner, of Liberty, met the same fate for giving a cheer for the president of the Confederacy. Three young ladies were arrested in Frederick for singing secessionist songs. Thomas John Claggett, also of Frederick, was arrested and imprisoned for singing “Dixie.”

  • Military arresting enough of Maryland's legislature that neither the Md House nor Senate could form a quorum to debate sucession.

    Civil Liberties in Crisis
    By the time the (Maryland) Legislature reconvened in September, with many of its members arrested and troops from Wisconsin stationed in the city, neither the House of Delegate nor the Senate could assemble a quorum. No further debate occurred on the issue of secession. Efforts to secede thus ended in the city of Frederick, successfully subverted and silenced by the Lincoln administration.

  • the suspension of habeas corpus

  • the use of military tribunals instead civilan courts to try civilians
  • the confiscation of rebels' property
  • the emancipation of the slaves

What does the Constitution Say

The Constitution splits the responsibility for war: Article I, gives Congress the power to:

  • declare war
  • to authorize an army and a navy,
  • to supervise the state militias
  • to "provide for calling out those militias

Article II gives the President the responsibility to using those forces.

The Constitution doesn't mention "War Powers" at all.

Lincoln's use of Military Power to enforce his War Powers

Lincoln and Tanners great writ showdown

In the United States Constitution, Article 1, Section 9, of the Constitution states that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Habeas Corpus origins go back to the signing of the Magna Carta in England in 1215 and compels the government to show cause to a judge for the arrest or detention of a person.

On May 25, 1861, federal troops arrested a Maryland plantation owner, John Merryman, on suspicion that he was involved in a secessionist group. Mr. Merryman was not given a trial, no courts warrant was issued for his arrest, and he confronted no witnesses against him. On May 27, 1861 the Chief Justice of the Supreme Court Roger Taney issued a writ of habeas corpus for John Merryman, ordering General George Cadwalader, Fort McHenry’s commander to produce Merryman and explain to the court why the man is being held without a warrent.

General Cadwalader did not comply with Justice Taney's writ, did not appear in court, but instead sent a letter back to Jutice Taney explaining President Lincoln had authorized the military officers to suspend the writ in order to facility public safety. Justice Taney then finds Cadwalader in contempt of court, but the solders at Fort McHenry refused to accept the notice.

Lincoln and Tanners great writ showdown
On May 28, Taney issued an oral opinion, which was followed by a written opinion a few days later. He stated that the Constitution clearly intended for Congress, and not the President, to have to power to suspend the writ during emergencies.

“The clause in the Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth section of the first article. This article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department,” Taney argued.

Justice Taney finding is also ignored, to which Taney writes...

Lincoln and Tanners great writ showdown
“I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome,”

Precedent of War Powers in the United States before Lincoln

War Powers is an ancient concept. The Roman Lucius Quinctius Cincinnatus in a time when Rome was a Republic, was granted Emperor Powers and Authority to deal with a marshal crisis. Cincunnatus was very influential with George Washington who envisioned himself from the same mold. Washington even named the society of Revolutionary War officers which he founded the society of Cincunatus.

Washington as Cincinnatus
Depictions of Washington as Cincinnatus abounded in the Revolutionary and Early Republican periods. Philip Freneau evoked Cincinnatus in a poem written on the occasion of Washington's resignation in December 1783. Remarking on Washington's decision to return to retirement at Mount Vernon, Freneau wrote: "Thus He, whom Rome's proud legions sway'd/Beturn'd, and sought his sylvan shade."5 Thirty years later, in his "Ode to Napoleon," Lord Byron eulogized Washington as "the Cincinnatus of the West."6 In one of the most famous contemporary images of Washington, Jean-Antoine Houdon's statue (1785-1791) in the rotunda of the state capitol in Richmond, Virginia, the retired general is portrayed in civilian dress as "a modern Cincinnatus," standing in front of his plow.7

.

Abraham Lincoln a man of Ideas page 195 President Lincoln's Secretary of State Charles Sumner argued that
the war power of the President is above the Constitution, because, when set in motion, it knows no other law. ... The civil power, in mass and in detail, is superseded, and all rights are held subordinate to this military magistracy. All other agencies, small and great, executive, legislative, and even judicial, are absorbed in this transcendent triune power, which, for the time, declares its absolute will, while it holds alike the scales of justice and the sword of the executioner.

.

Only there is no mention of "War Powers" for the executive written into the Constitution.

Lincoln justified his assuming his special War Powers on the grounds of his Oath of Office. His Presidential Oath calls for hims to "preserve, protect and defend the Constitution of the United States", and that was his justification.

Abraham Lincoln and the Development of the " War Powers" of the Presidency

By conferring on the President the title of "commander in chief," the Constitution created an awkward and unde ned area of presidential prerogative. e rst President to have to confront this ambiguity was Abraham Lincoln, who developed a presidential "war powers" doctrine based on his presidential oath, the Constitution's "republican guarantee," and the necessity imposed by the novelty of a civil war. is doctrine was seriously contested in Lincoln's time by both Congress and the judiciary, and it continues to be an unresolved constitutional question in the present. But Lincoln's use of such war powers is one demonstration of how a doctrine aimed at awarding the President unilateral powers to override civil liberties safeguards need not create a lethal threat to democratic and constitutional government.

More Modern War Powers

War Powers while first pioneered by Abraham Lincoln as an American manifestation has been assumed by subsequent Presidents. They were also the name of a Congressional act passed into law in the 1973's (War Powers Resolution) which overcame a Presidential Veto, and tried to check the President from committing Forces to War without a Congressional declaration. That law has been violated by subsequent presidents, and those violations have never been prosecuted. War Powers remain a controversial subject today.

Modern Use of War Powers

  • Presidents Wilson and Roosevelt's seizures of German property during both world wars
  • President Roosevelt's detention of the Nisei in 1942
  • President Truman's nationalization of the steel industry
  • Presidents Kennedy, Johnson, and Nixon and the Vietnam War
  • President Jimmy Carter's failed Iranian hostage rescue
  • President Ronald Reagan's committing US Marines to Lebanon
  • President Ronald Reagan's invasion of Grenada
  • President Bill Clinton in 1999, during the bombing campaign in Kosovo.
  • President George W Bush's use of Guantanamo Bay as a prison camp
  • President Barak Obama's use of Military Force in Syria


Related Question:

Sources:

Comments

Mark C. Wallace Just curious. "Usurp" is not a neutral word, and is also a transitive verb.

To my mind "usurp" is descriptive of the events as they occurred and not negative. To my mind what makes the question interesting is the fact that the founding fathers WERE paranoid of instilling in the Presidency dictatorial Powers. Paranoid the Presidency would become a de-facto monarchy. It was one of their most consistent fears and why in the original Articles of Confederation there was no office of the President. Dictator was also the charge continuously made against George Washington by Thomas Jefferson and his supporters. That Lincoln did so much that the founding fathers were most afraid of, and did it in defense of the constitution makes this question interesting. That Lincoln took these actions, unilaterally and "cloaked himself in immense power", at a time when the nation needed such a leader bold enough to take such actions, to my mind saved the union. Perhaps negative if you were one of the founding fathers who was debating "war powers" hypothetically in 1790. Perhaps negative if you were a contemporary of Lincoln's in 1862. But certainly this is one of the reasons Abraham Lincoln goes down in history as one of the greatest American Presidents. Literally cloaking himself in immense power to save the union.

Mark C. Wallace From whom are the powers usurped?

The rights usurped from Congress

  • to suspend habeas corpus
  • to declare war
  • the right to borrow, budget and spend money

The rights usurped from the Supreme Court

  • to check Presidential Power and ensure constitutionality of Federal action was usurped

The right to legislate at the state of Maryland level was usurped from the Maryland Legislature. The rights to freely assemble, free speech and free press were usurped from the citizens who were arrested and or deported for exercising those rights.

Mark C. Wallace How would the question change if it asked whether Lincoln "created" his war powers? –

If Lincoln had merely created these war powers perhaps he would still go down a great president. But that he usurped them in the service of protecting the constitution, stood for re-election in 1864 and allowed the people to judge his actions, and was ultimately successful at preserving the union; are all what set Lincoln apart as one of the greatest.

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    Just curious. "Usurp" is not a neutral word, and is also a transitive verb. From whom are the powers usurped? How would the question change if it asked whether Lincoln "created" his war powers? – Mark C. Wallace Aug 23 '18 at 11:10
  • @MarkC.Wallace thank you for the comment, I added my response to the end of my question. – JMS Aug 23 '18 at 15:54
  • Assigning Guantanamo as a site for a prisoner camp has nothing to do with the war powers act. The site is an existing US military installation outside of US territory, and its use as a prison facility for people awaiting military trial is an internal military decision. What might require congressional approval is extending that use to non-military inmates, like those apprehended by DHS. And that's been done by congress, not presidential executive order AFAIK. – jwenting Sep 3 '18 at 5:21
  • @jwenting Supreme Court Rejects Bush’s Terror Powers “outside of US Territory” RASUL VS BUSH. 2004 “Nothing to do with war powers?” Hamden vs Rumsfeld also War Powers and Guantánamo – JMS Sep 3 '18 at 9:00
  • @JMS the establishment of the facility has nothing to do with warpowers, it's just a military prison. What people are incarcerated there may be another matter. – jwenting Sep 3 '18 at 9:57
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First off, lets dispense with one disagreement:

  • the right to declare war without Congress

This did not happen. No declaration of war was ever made for the US Civil war. I haven't looked into the Confederate side of this, but from the Union perspective such a declaration would not have made any sense. A DoW is delivered to a foreign government, and issuing one on the Confederacy would have required recognizing them as a legal government.

This is entirely consistent with previous actions by the US military under previous presidents. There was no declaration of war when Washington put down the Whiskey Rebellion, nor when Adams used federal troops to put down Fries's Rebellion. The only thing that was really new and different here was the scale, (or if you prefer, the seriousness of the threat).


As for the rest, there's a bit more fairness there. However, your timeline is conspicuously lacking in mentions of Congress, considering the argument centers on their exercise of their powers. So lets add some bullets:

  • March 28, 1861 - Congress adjourns (Special Session)
  • July 4, 1861 - Congress convenes for its first session.

All the stuff you are talking about happened between these first two bullets, and I believe it was all (retroactively) approved by Congress once it reconvened.

Now if it was felt necessary and productive to do so, Congress could have stayed in session to authorize all of these actions as they came up. The new Congress was overwhelmingly Republican, so there really wasn't much chance they weren't going to approve, and there was a military necessity for quick action. Congress (once it reconvened) certainly wasn't behaving like it felt any of its power had been "usurped".

Now for the next obvious question: Why on earth would Congress adjourn at a time like this? It wasn't normal. Typical Congresses of the era ran their first session from early December to some time in August. This set of dates more resembled a typical second session. I can't find any reference to the exact reason for this, but it seems quite likely there were a sizeable amount of members on March 28th who represented states that were preparing to secede, and thus would likely have been working to actively sabotage the body if they remained in Washington as former Secretary of War Floyd had been doing. Being more generous, the adjournment gave individual Congressmen time to go home and verify that their states actually wanted them to come back to DC. It was really up in the air if there was even going to be a Congress to come back to.

The Supreme Court was arguably even in a worse condition, as all but 2 of its members were either southerners or slavery sympathizers. It very well could also have contained Floyd-style saboteurs, willing to make decisions specifically to militarily help the Confederates.* Obeying its decisions about Congressional authority while Congress was out of session to have its say could be argued as suicidally foolish.

Realize that a lot of the actions in question were in service of preventing Maryland from leaving the union. A quick look at a map will show you that if that had happened, the entire position of Washington DC would likely have been untenable, and the "union" would have been faced with the prospect of trying to run a government and raise troops to protect itself from the Confederate Army without a capitol.

In short, this was a super unusual situation, and one in which strict adherence to the letter rather than the spirit of the Constitution would likely have done nothing but doom it.

* - In the event, only one SCOTUS member actually resigned (on April 30th, 2 and a half months after his state seceded) and joined the Confederacy. Sadly for him, his state didn't trust him either, and he had to spend the rest of the war in New Orleans.

  • Nice Answer. Although, Presidential Action with regards to the The Whiskey Rebellion(1791–1794) and Fries Rebellion(1799 ) were authorized by congress in two Militia Acts of 1792 and Militia Act of 1795 respectively. Nobody authorized Lincoln to borrow money, spend money, raise his army nor invade the south. I think your last "in short" sentence though sums it all up. Extraordinary times, you either become extraordinary or you risk becoming extinct. – JMS Aug 23 '18 at 16:53
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    @JMS - I looked into that prior to posting. What was authorized in the Militia Acts was calling up (taking over from State authority) state militias for that purpose. In Fries, federal troops were used, so that power was not needed. In TWR it was, but that bill was designed so that the only outside order required to invoke it was from a single federal judge (to declare the conditions stipulated in the bill to be in effect), so that's all that was done by Washington. In neither case was there a check with Congress to see if it was OK for the POTUS to send the federal(ized) troops out. – T.E.D. Aug 23 '18 at 17:37
  • I found this source which supports your larger point. Emergency Power and the Militia Acts see page 163.. Based on your objection and subsequent research I'm going to remove "declare war" from Lincoln's War Powers. Thank You – JMS Aug 23 '18 at 18:44
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    @JMS - Fair. For my part, I really ought to add a third lined-off section that answers the question when rephrased without "the U-word". Because I think that's actually a fascinating question, and the historian you linked in the previous question about it may well have had a really good point. – T.E.D. Aug 23 '18 at 18:47
  • @T.E.D. You list the Whiskey Rebellion and the Fries Rebellion as examples of not declaring war because the opponents were internal. There were also dozens of cases where Congress did not declare war on Indian tribes in a state of rebellion against the Federal government. – MAGolding Aug 23 '18 at 19:19
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It is really good idea to use definition of USURP - “to seize and hold (office, place, functions, powers, etc.) in possession by force or without right”, AND to answer the question “From whom are the powers usurped?”.

So in order to usurp the power, one should: a)Use the power he does not have rights to use; AND
b)Prevent the party which has the right to use this power from exercising it.

The rights usurped from Congress: Lincoln used some rights reserved for Congress at the time when a) Congress physically could not exercise these rights (because was not in session) and b)immediate exercising these rights was necessary in order the President to fulfill his constitutional duty “to the best of my Ability, preserve, protect and defend the Constitution of the United States”. However, at no point Lincoln prevented Congress to exercise legislative powers; on the contrary, after Confederacy open hostilities against US army, Lincoln called Congress into extraordinary session on July 4, 1861 (normally, Congress session would not happened until the same year December).

The right to legislate at the state of Maryland level: Lincoln prevented some members of Maryland legislature to exercise their legislative power, but he did not legislate at the state of Maryland level.

In both Congress and Maryland legislature cases, Lincoln’s actions legality and constitutionality could be questioned and discussed, but they don’t constitute usurpation by Merriam Webster's Definition.

Speaking about the rights usurped from the Supreme Court - what specific Supreme Court cases and decisions you are talking about? Supreme court justices also acted as a federal circuit court judges for different districts, but their individual actions in these roles don’t constitute Supreme Court powers.

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