Just out of curiosity, what makes this era different (re: emergency powers) than say 150 years ago? Lincoln suspended the writ of habeas corpus, had military tribunals, etc... yet we think of him as the man who saved the union. What's the difference between then and now?
Insurrection is the difference. This isn't one, nor is it equivalent to one. The homeland is peaceful and access to the courts unimpeded -- the extra justice track isn't needed.
Unlike the civil war and the suspension of habeas, sadly, the emergency powers invoked by Bush and Obama are unlikely ever to be rescinded.
Explained above.
I was referring to this, tiger.
we're doing now didn't fly 150 years ago.
To be fair, it's not like there are foreign armies at our shores. But I wouldn't necessarily characterize the homeland as peaceful. We've suffered attacks and threats of attack. More importantly, the cons ution speaks in terms of "invasion" and it's certainly reasonable to claim that AQ has invaded (read, operates) the US.
I guess my question is, why hasn't the precondition of Art. 1 Sec. 9 been met?
Meh. Lincoln openly disregarded the Supreme Court in Merryman.
Dunno why a holding issued after the end of hostilities is applicable here?
lol I didn't even know this:
In response, the Court ordered federal marshal Bonifant to bring the general and Merryman to court. Taney could have organized an armed posse of deputy marshalls to arrest the general, but that might have resulted in bloodshed and was avoided.
As an alternative approach, Taney wrote a blistering opinion — today considered one of the greatest opinions of the Supreme Court — and had a copy delivered to President Lincoln. The opinion condemned the action of the president and reviewed the leading authorities on English as well as American cons utional law.
An undoubtedly enraged Lincoln took it upon himself to execute an order to arrest the chief justice for having the gall to give orders to the president and to condemn his acts against the Cons ution. And remember: Taney was simply doing his duty, as under the Cons ution the Supreme Court has the final say on Cons utional issues, not the president, not the Congress, not anyone else.
According to the writings of U.S. Marshal Ward Hill Lamon, questions arose about serving the arrest order on the chief justice, and where he should be imprisoned. Lamon recalls that Lincoln gave the arrest warrant to him with instructions to “use his own discretion about making the arrest unless he receive further orders.”
Lincoln was saved the condemnation of history, possibly impeachment and removal from office as well, by a reluctant federal marshal who wisely refrained from arresting the chief justice of the United States. But notwithstanding the failure to arrest the chief justice, this episode marked the end of cons utional government in the United States, as a British periodical, Macmillan Magazine, observed in 1862:
There is no Parliamentary (congressional) authority whatever for what has been done. It has been done simply on Mr. Lincoln’s fiat. At his simple bidding, acting by no authority but his own pleasure, in plain defiance of the provisions of the Cons ution, the Habeas Corpus Act has been suspended, the press muzzled, and judges prevented by armed men from enforcing on the citizens’ behalf the laws to which they and the President alike have sworn.
http://www.fff.org/freedom/1100e.asp
Begging the question. It seems to me it would be on you to show that the burden has been met, particularly as you're the one who wishes to characterize a handful of discrete terrorist crimes (on the US homeland) as a sustained "rebellion and invasion," against most accepted usage and common sense.
To be fair - it's rebellion OR invasion - not conjunctive.
You're right - the burden would be on the president or anyone who would try to invoke the clause. I'll say that the courts have been receptive to the argument in the past 10 years and wouldn't agree with your characterization of a "handful of discrete terrorist crimes."
We can't have a separate justice track for citizens absent rebellion or invasion.
How would you characterize it?
Huh? What's that got to do with a case that was issued after the writ was reinstated?
As an invasion.
Regardless, my point is that we haven't "turned a corner." Last I checked, Obama wasn't trying to have Roberts arrested.
Be careful, he's going to keep talking you in circles until you throw up your hands and he declares himself the winner of the argument.
Have you ever read the book, "If You Give a Moose a Muffin."
@vy65: You could be right. Only time will tell whether any future presidents will be tempted to abuse the regal, unreviewable power now claimed.
Do you feel personally threatened by our Orwellian dystopic state?
Personally, no. Is that germane somehow?
Was just curious.
Uh huh. Hope your curiosity is satisfied.
I didn't know about that either. Still, putting the words "invasion or rebellion" on a procrustean bed doesn't get us to a situation comparable or even plausibly analogous to the Civil War.
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