Did Lincoln "usurp" his war powers?

score:14

Accepted answer

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.

Upvote:-1

Lincoln said in his First Inaugural Address, that the only recourse of minority-states was revolution.

So if one is to concur, then technically Lincoln could not have usurped anything, because the majority of state officials supported him; and their combined discretion would determine the final judge of their own powers.

Objectively speaking, however, the Constitution was not to be defined by the combined state officials in state and federal governments; but by the unanimous people of the individual states respectively, otherwise the Constitution would be meaningless in limiting the federal government against such a majority. Which was precisely the objective under Union politicians and their respective benefactors. As Lincoln said in his first inaugural address:

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it.1

And of course, an amendment requires more numbers than any federal law that the people could possibly oppose, thus presenting a Catch-22, by which the minority-states had only revolution against a majority in both states and numbers, claiming that "The States have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law and by revolution."2

So if one is to concur that the Union was indeed a single nation, and that the federal government therefore held supreme national authority over the individual states, then technically the federal action was not an act of war, and thus would not fall under the war-powers act. However if they concur with this, then facts are not really important: just agenda-driven narratives.

Upvote:3

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.

More post

Search Posts

Related post