Describe two of the unprecedented actions that Lincoln took during the Civil War. Do any of Lincoln’s actions strike you as an abuse of executive power?
Week 5: Constitutional Problems Under Lincoln
Describe two of the unprecedented actions that Lincoln took during the Civil War. Do any of Lincoln’s actions strike you as an abuse of executive power?
Constitutional Law (Powers): Spring 2020 
The two unprecedented actions of Mr. Lincoln during the Civil war would be acting without prior Congressional approval for the use of war and suspending habeas corpus.
A.Lincoln decided to use his authority as commander in chief using a state militia for federal military services and expanding the size of the military forces and initiating a war.
This decision was without congressional approval because congress was not in session. He then held a special session on July 4th, 1861 justifying his actions during a national emergency. His justification was in protection and preservation of the constitution and the federal government against insurrection.
Mr. Lincoln took the initiative to suspend habeas corpus after the attack on Union troops in Baltimore. The logic of suspending habeas corpus is so that the jury or judge doesn’t rule in support of the enemy despite the lack of evidence. The writ of Habeas corpus requires the examination of the court to determine if the imprisonment or detention is lawful. This entitlement is protected under the constitution Article I section 9. The vagueness of this section does not directly state who the right to suspend is granted to. (the President or Congress)
“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.” Abraham Lincoln used such an obscure sentence to his advantage claiming that the country was in fact in a state of rebellion, yielding him certain war powers. With this controversial action, I can understand how other critics accused Lincoln of executive usurpation. Understanding the previous history of why Mr. Lincoln decided to extend his executive power, as it was at its infancy with very limited power, could also be justifiable. Mr. Lincoln took office during a challenging time when 7 southern slave states seceding from the Federal union and forming the Confederate States. This was likely to influence other slave states to secede joining the confederate states. As the role of a president and commander in chief Mr. Lincoln knew that he inevitably needed to use such inherent powers of the presidency for preservation of the union. This decision was in effort to save the United States from disintegration which would portray a poor leader if it occurred.
The most recognizable action of Abraham Lincoln would be the Emancipation Proclamation which was a strategic move from his administration to end rebellion and as a weapon of war. His goal was to destabilize the confederacy military. Since southern slaves were encouraged to escape from their owners, diminishing the support to the confederate army. Instead ex-slaves joined the Union army fighting to defeat the confederacy.
This executive order freed slaves in the rebellious south and preserved the union which mirrors a tactical leader willing to use the crisis of the country to unify instead. I want to acknowledge his “abuse” of executive power as a means to protect the constitution as he swore under oath and still managed to reflect his disapproval of slavery in a constitutional manner. I do not think he abused his power of presidency as he was swearing to protect and the constitution during troubling times.
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Excellent, Tonya – thank you
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During the Civil War, Abraham Lincoln added more power to his already powerful position. He assumed the war powers which were not described as presidential anywhere in the Constitution (except being Commander in Chief, but that should be understood as a person who commands the army and navy directly or indirectly [at least how I understand it]). From the reading, we can conclude that he interpreted many “war power” rights which were usually associated with Congress and the job of a legislative as executive ones. These are the right to suspend habeas corpus privilege, spending money from the treasury of the US without consent of Congress, using the militia to suppress rebellions, and many more. It was also mentioned that “special war courts” were created during Lincoln’s administration, and a lot of “presidential legislation” was used by him. Looking at these facts with the unbiased mind I can clearly say that abuse of power was a distinctive feature of Lincoln’s administration and I can also understand why ladies have banners saying that he was a “tyrant.” However, as the reading wisely points out, even if he was a tyrant he was a “benevolent” one. Therefore, I understand the concern of striking ladies, but I do think that being a “tyrant” in a way in which Lincoln was a “tyrant” may bring American society, and it did, to positive results. I think here I would agree with Socrates that democracy isn’t always good. If Lincoln would listen to his constituents (who at that time were white males only) America would never look the way it does today. Therefore, breaking the “rule of law” is not necessarily a bad thing in my humble opinion, or at least at Lincoln’s case.
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Of the executive actions taken by the Lincoln administration during the American Civil War, the two that will be discussed for the sake of this assignment are 1) the enforcement of the Militia Act of 1862 and 2) the call for the “reconstruction” of the Union (by coalescing with the Confederate states) on December 8, 1863.
As explained by Randall, many contemporaries of the Civil War agreeD that the president’s “wartime powers” were, as the term suggests, to cease once “the conflict was concluded.” On the surface, this logic makes perfect sense. To quote Randall, “Rights under the laws of war must, of course, be exercised only during war.” However, the activation of such wartime powers are not always so cut and dried. For instance, whether or not “acts performed under such rights lose their effect and validity when the war ends” is certainly a contestable point of contention.
Article II, Section 2 of the United States Constitutions affirms that: “ The president shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” It has generally been understood (with some criticism, however) that the president, in line with Article II, Section 2, has the power to respond to and repel attacks aimed directly toward the United States without Congressional approval, especially under pressing or immediate circumstances. Despite this—upholding a system of checks and balances amongst the three branches of government—is has also generally been understood that if the president abuses this power, Congress possesses the right to impeach and remove him or her from office.
To place all of this into the context of the Civil War, Lincoln’s enforcement of the Militia Act of 1862 permitted African-Americans to participate in war efforts for the first time in seven decades. As consequence, Lincoln was accused, by some, of “usurping the legislative power in promulgating such far-reaching regulations.” Lincoln was denounced on similar grounds of legislative usurpation when he “promulgated a comprehensive plan of reconstruction, outlining in detail the method by which the States of the South were to be restored to the Union.”
As far as I am concerned, in neither of these cases did Lincoln abuse his executive power. The president is the “fountainhead of military justice,” and as well as of military command (Lincoln was notoriously involved in the day-to-day operations carried out by Union forces). In addition to his or her previously aforementioned duties as Commander in Chief (which most would agree remains unscathed by the War Powers Resolution of 1973), the president is also responsible for preserving a stable union. Thus, especially in a state of emergence (which the Civil War, in my estimation, more than qualifies), Lincoln’s executive actions reflect his constitutional ability to promptly respond to immediate threats made against the United States without Congressional approval. I admire Lincoln’s determination to act without haste, rather than allow critical decisions regarding military enforcement to be bogged down in the slow-moving Congress. Furthermore, in reference to my earlier point about, as per Randall, acts performed under wartime powers not losing their “effect and validity” when conflictS concludes also extends to Lincoln’s actions here.
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This is great, Eric – thank you. Yes, the idea of war powers being confined to war is very important indeed. (This is basically what all my current research is about). Yet, as we’ll see next week with our discussion of Reconstruction, many significant war powers remained in tact after the Civil War, until the Southern states were finally all readmitted in 1870. With this in mind, while I commend you for highlighting reconstruction here, we’ll defer some of that discussion to next week.
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Lincoln set out a call for volunteers (to expand the army) in May of 1861, despite the fact that congressional authorization for the increase of the army had not been given. As said in the reading, “it was made in anticipation of congressional authority”. He also issued a “general order” that exemplified the “rules of war applicable to armies in the field”. I would argue that quite a few of Lincoln’s actions were an abuse of executive power, with his “general order” being one of them. Given by the Constitution, the power to make rules for the government and the army/navy (literally to legislate), lies with Congress – not with the president. Even if his hand was not the one that originally wrote it, his proclamation of it’s derivation is still not within his duties.
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Two of the unprecedented actions that Lincoln took during the Civil War are calling up state militias for federal military service and suspended habeas corpus privileges. He protected officers doing wrong by extending immunity for acts performed. In my opinion, Lincoln suspending the use of habeas corpus demonstrates how there was an abuse of executive power. The suspension of this constitutional guarantee by which a person can’t be prisoned without having charged with specific crimes demonstrates how he was abusing the executive power. Through executive power, the president has the right to declare war when it’s necessary, however, to prison many protestors who were vocal about their opposition to the war against the South. It was their individual liberty that was taken under Lincoln’s power. To me, this strikes as the most dangerous out of many cases of abuse of executive power Lincoln was convicted of.
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Two of the unprecedented actions that Lincoln took during the Civil War are calling up state militias for federal military service and suspended habeas corpus privileges. He protected officers doing wrong by extending immunity for acts performed. In my opinion, Lincoln suspending the use of habeas corpus demonstrates how there was an abuse of executive power. The suspension of this constitutional guarantee by which a person can’t be prisoned without having charged with specific crimes demonstrates how he was abusing the executive power. Through executive power, the president has the right to declare war when it’s necessary, however, to prison many protestors who were vocal about their opposition to the war against the South. It was their individual liberty that was taken under Lincoln’s power. To me, this strikes as the most dangerous out of many cases of abuse of executive power Lincoln was convicted of.
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The war powers the executive branch wielded during the civil war went beyond those enumerated to the president in the constitution. Presidential war powers are loosely defined and expand to affect civilians/ Besides the expanded executive authority during war time, Randall reveals that the president also has the ability to pursue acts that resemble presidential legislation and justice. These acts begin to trend on the constitutional authority of both the legislative and judicial branches. For example, Lincoln issued a general order which served as a whole new code of laws that applied to the armies on the field. Although this act may appear to be innocuous compared to other more egregious acts, like establishing martial law, ultimately this action usurps congressional power. The main danger such an action possesses is not in the immediate effect but in the long term precedent set. A future president with more dictatorial ambitions can justify his constitutional violations during war time by citing Lincoln’s actions.
Moreover, Lincoln create special war courts in the conquered regions to handle cases that were normally handled by state courts. Lincoln authorized military commanders to establish these courts and in some cases these courts had virtually unlimited jurisdiction. Even if these courts were created with good intentions, for instance to protect the newly freed blacks in the south, they still undermine the authority of the judicial branch of the US.
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Lincoln’s suspension of habeas corpus and the use of conscription despite the Militia Act did not explicitly allow it was his most unprecedented abuse of executive action. Suspending habeas corpus privileges would only be an abuse of power if the Confederacy is seen as a group of rebel states and not a separate country. If the are seen as rebelling states then they are still citizens of the Union and therefore granted all rights and privileges. Abiding by one part of the Constitution does not override another, even during a war. However, viewing the Confederacy as a rebelling could allow Congress to suspend habeas corpus through the necessary and proper clause. The use of conscription itself may not have been unconstitutional but Lincoln’s broad interpretation of the Militia Act could be. If Lincoln wanted Congressional approval for his actions, abusive or not, broad interpretations of irrelevant laws. If conscription is constitutional then in times of war the president does not need a separate law allowing it. Once a declaration of war is given then the President is in charge so long as he doesn’t do anything unconstitutional. However, sometimes Lincoln worries about constitutionality such as with the Militia Act but other times he doesn’t as with suspending habeas corpus.
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Two of the unprecedented actions that Lincoln took during the Civil War include “usurping the legislative power” by calling for volunteers to enlarge the army on May 3, 1861. This sort of call would usually come after Congress authorized it, but President Lincoln did this without congressional approval and assumed that they would approve it later. Another unprecedented action Lincoln took was when he issued a general order stating the rules of war for active duty army units, therefore putting into effect a whole code of laws without congressional approval.
None of Lincoln’s actions during the Civil War strike me as an abuse of executive power. Civil wars are immensely difficult and basically impossible for politicians and military leaders to navigate through peacefully and legally. The American Civil War was as brutal as any other and President Lincoln was doing his best to keep the country together and stop the southern states from seceding. In times of war, people are faced with violations of human rights that face impunity, sometimes from rebel groups and sometimes from the government. Lincoln clearly tried to avoid as much destruction as possible, both to citizens of the United States and to the respectability of the government and constitution. Though he may have reached past his explicitly named powers as president, he did so in a way that was as justified and orderly as they could possibly be.
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The first unprecedented act Lincoln took during the civil war was to suspend habeas corpus. The writ of habeas corpus requires a person that has been arrested to be brought into a court. When Lincoln suspended habeas corpus, people were denied their rights to a trial. One of the main reasons for suspending habeas corpus was to arrest Dissenters and confederate sympathizers. The second unprecedented act Lincoln took during the Civil war was the Emancipation Proclamation. This made slavery illegal and unconstitutional and slaves became free people. Both of these acts do strike as an abuse of power because Lincoln suspending habeas corpus denies someone the right to a trial. The emancipation proclamation was a necessity in order to abolish slavery and start establishing racial equality in the United States. Lincoln justified suspending habeas corpus because the Union was in a time of crisis and public safety was an issue. Lincoln suspending habeas showed the executive branch exercising more power than before.
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One significant action taken by Lincoln during the civil war era was enforcing the plan for reconstruction. By promulgating laws to restore the southern states into the union is a right the constitution would give to congress. Another unprecedented decision was enforcing a draft for the army on states for the first time. Lincoln did however, give the states a choice to build up their armies in other ways they could if they refuse to follow the draft. Both instances are a breach of executive power because the laws passed for reconstruction was done so without going through the legislature. The draft being used to raise a military should also have been decreed by congress as well.
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During Lincoln’s presidency, he would go on to make many decisions and actions that no president before him had ever made. That was also because the US was facing an unprecedented crisis of civil war. President Abraham Lincoln invoked is war powers as commander-in-chief in which he would be allowed to take any actions necessary to defeat the enemy.
One of the unprecedented actions that Lincoln took during the civil car was the right to suspend the “habeas corpus” privilege. Many people opposed the idea, but Lincoln claimed that the US was in a rebellion, and he had special powers that would permit him to suspend habeas corpus. Another one of Lincoln’s unprecedented actions was that he declared martial law, which subjected the “whole nation to a military rule for the duration of the war, regardless of any insurrection or threat of invasion, would be most unlikely. This disposition to hold the government at all times within the law, and this wariness in the exercise of military power over civilians, are fundamental postulates in any discussion of war powers in the United States.” This law would, at times, would involve the withholding of individual rights that were promised to citizens under the constitution.
Many of Lincoln’s actions do strike me as an abuse of executive power. Still, then again, Article II of the constitution states the executive power by saying “the executive power in a president of the United States.” But it doesn’t define the executive power; clearly, the meaning is very vague, which causes many presidents in the past and present to push the limits of executive power. As the article states, ” the right to place persons under arrest without warrant and without judicially showing the cause of detention; the right to seize citizens’ property,” these are all abuse of power. Taking rights invested onto a citizen away and using martial law as a defense is one of the most explicit abuses of executive power.
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The two unprecedented actions Lincoln took during the Civil War were suspending habeas corpus and “the right to spend money from the treasury of the United States without congressional appropriation” (p.36). The suspension of habeas corpus meant ” the commanders could make seizures and arrests without warrant, imprison without judicial ” (p.26). Lincoln’s appropriation of the funds was in violation of Art. I, sec. 9, par. 7 of the US Constitution which says “no money shall be drawn from the Treasury but in consequence of appropriations made by law”.
Both actions could be considered of abuse of power because neither power were granted to the Executive power in the Constitution. However, I believe President Lincoln didn’t really have time to sit around and contemplate on what kind of action he could and could not do. I believe he took the necessary action in trying to halt the rebellion in the South as quickly as possible and as best he could.
-Martin B. (PSC21200)
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President Lincoln had some unprecedented actions; one of them is starting a Civil War and another being the Emancipation Proclamation. In the earlier times, before Lincoln was President, United States never had a Civil War; President Lincoln came into power in 1861, in the midst of many problems ranging from Slavery to secession. His main goal throughout the war was to keep the country united as one. The civil war lasted 4 years and once it was over; Lincoln got assassinated.
The emancipation proclamation was also an unprecedented action that President Lincoln initiated. The Emancipation Proclamation was an executive order that main purpose was to both encourage states that rebelled to join the union and to also free the slaves from the rebellious states.
Both actions can be perceived as an abuse of executive power because President Lincoln ultimately caused a war within his own country. However, both actions led to the betterment of the future of the United States.
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Thanks Sabreen, although to clarify I don’t think the first point is about Lincoln “starting a civil war,” but more about declaring a state of rebellion and then acting to suppress that rebellion. More like he’s owning the power to say when a war has started, if that makes sense.
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Two unprecedented actions that Lincoln took during the Civil War was creating his own laws and orders without the initial approval from Congress which is described as “presidential legislation” and tacking the question of slavery which he answered through the “Emancipation of Proclamation” which is described as “presidential jurisdiction.”
First, Lincoln took almost total control of the federal and even state government by acknowledging the Southern seceding as a “rebellion” and so assume all power to stop it due to his Executive power which is “to defend and protect, defend the constitution” and war powers. Lincoln wanted to weaken the Confederate troops and preserve the union he did so by using the notion of “a rebellion or war,” it grants him almost unlimited powers in which he can do whatever he wants and no one can stop him. He organized and called upon a militia which Congress is supposed to do and Lincoln declared “war” rather than Congress and basically assumed almost all legislative powers.
He even announced a comprehensive plan of reconstruction, which outlines in detail the method by which the States of the South were to be restored to the Union. Another action he took was rather than having the Supreme Court issue whether slavery is constitutional or not, he issues the “Emancipation of Proclamation” which “liberated” the enslaved from the South. This was another way of limiting the Confederates power as the enslaved were considered as “property” rather than citizens.
I consider these and many more as abuse of executive power mainly because Lincoln did what he wanted with or without the support from Congress in order to win the Civil War. Although it was important and “dire” to weaken the Confederate side, the President is not above the law. Over the decades, we have seen an increasing rate of Presidents using their implied powers as a way to further their agenda and it gained momentum initially by Lincoln.
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This week’s readings high-key opened up my eyes. The fact that we observed Lincoln’s birthday not too long ago and revere him as a hero of the United States, yet do no realize that his unprecedented actions may be compared to that of a dictator is fairly ironic. Lincoln exercised powers that were beyond his function as commander-in-chief, as evident of his executive orders without Congress’ authorization. One of them being that he suspended the writ of habeas corpus, ultimately meaning that someone can be arrested without any reason or knowing why they are being detained for. Going hand in hand with the suspension of habeas corpus was Lincoln’s implement of martial law, in order to take advantage of military tribunals. It’s pretty much broad as day to see that Lincoln indeed over extended his executive power, but he was the man who put an end to slavery and endured a hellish 4 years of civil war, hence why I feel that his abuses are not recognized as violations of power. For sure, Lincoln’s actions would of stirred up controversy at the time, but I can think various examples similar to Lincoln’s abuses that were let off the hook, such as Executive Order 9066 that detained those of Japanese descendants after the bombing of Pearl Harbor.
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Great reflection, Justin – thanks!
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President Lincoln took unprecedented action during the Civil War in order to save the Union. He acted quickly to defend the Constitution and the federal government against insurrection. He was determined to fulfill this pledge by using any and every executive power available to him. Of the actions President Lincoln took was a naval blockade of Confederate ports and he also suspended the writ of habeas corpus to restrict anti-Union activity. President Lincoln acted without prior congressional approval because Congress was not in session at the outbreak of war. So, he called a special session of Congress, which convened on July 4, 1861. On that occasion, Lincoln explained his actions and asked Congress to consent to what he had done during an unprecedented national emergency. Cogress did not dissapoint President Lincoln’s apppeal. I believe that there was no choice other than to take emergency action and President Lincoln’s actions were necessary to help the union get through that difficult period. I believe that by seeking and receiving the endorsement of Congress for his unprecedented exercise of executive powers, Lincoln’s actions were justified and were not violations or abuse of executive power. He acted out of good will and Congress agreed with his decisions in the end.
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President Lincoln took unprecedented action during the Civil War in order to save the Union. He acted quickly to defend the Constitution and the federal government against insurrection. He was determined to fulfill this pledge by using any and every executive power available to him. Of the actions President Lincoln took was a naval blockade of Confederate ports and he also suspended the writ of habeas corpus to restrict anti-Union activity. President Lincoln acted without prior congressional approval because Congress was not in session at the outbreak of war. So, he called a special session of Congress, which convened on July 4, 1861. On that occasion, Lincoln explained his actions and asked Congress to consent to what he had done during an unprecedented national emergency. Cogress did not dissapoint President Lincoln’s apppeal. I believe that there was no choice other than to take emergency action and President Lincoln’s actions were necessary to help the union get through that difficult period. I believe that by seeking and receiving the endorsement of Congress for his unprecedented exercise of executive powers, Lincoln’s actions were justified and were not violations or abuse of executive power. He acted out of good will and Congress agreed with his decisions in the end.
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One unprecedented action President Lincoln took during the Civil War was the right to suspend the habeas corpus privilege. When the Civil War began President Lincoln was given war powers, before that there were certain limitations to the executive power. Executive power is to faithfully execute the office of the President; to preserve, protect and defend the Constitution and to be commander in chief of the army and navy. Because of suspension of the writ, authority from the judiciary is moved to the executive. This suspension allowed President Lincoln to stop the courts from reviewing detentions along a rail corridor. “Because Congress was not in session, Lincoln’s proclamation was an aggressive assertion of executive power, in that congressional concurrence, commonly considered to be required by the Constitution, was not evidenced by supporting legislation”. (Bensel, 140) This sticks me as an abuse of executive power only because it did not receive congressional approval and was done at the expense citizens rights.
Another unprecedented action President Lincoln took during the Civil War was the emancipation of slaves in the country. Before and during President Lincoln’s presidency, he opposed the spread of slavery in states and newly acquired territories and slavery at all. The U.S. Constitution allowed each state to decide whether it allowed slavery within its boarders or did not. President Lincoln understood that in order to abolish slavery in the South there must be a law/ amendment to do that; so he issued the Emancipation Proclamation. After the war President Lincoln did not know what to do with the emancipated slaves, which brought on many questions in Reconstruction,mainly citizenship. The “Emancipation transformed property into citizens…” (Bensel, 146). I personally do not believe that this is an abuse of power because morally slavery is wrong. Many may believe that it was wrong of President Lincoln to do that because the South’s economy depended on the labor of slaves and he basically took away “property” that did the labor.
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War power can often be viewed as unnecessarily large and overreaching, specifically in Lincoln’s actions during the Civil War. I don’t think Lincoln’s unprecedented action of creating special war courts were abusive of executive power because the executive is meant to have the power of review over military courts during times of war. Lincoln creating another set of rules applicable for armies is a form of abuse, however, because that falls under Congress’ constitutional responsibility. The executive should not be able to form “rules for the government and regulation of the land and naval forces” without including Congress’ input. Congress already created their own military code at various times, which is influenced by existing international law, so it is hardly an issue of Congress’ lack of timeliness. Congress’ timeliness during war cannot be used as an excuse for why Lincoln created different rules separate from Congress, because that necessity of new rules can be adjusted depending on Congress’ existing law and input.
While Parte Milligan’s point about the potential for corrupt people to abuse the executive powers, there are checks in place to suppress that potential. The writers of the Constitution did expect that wise and humane rulers can be unrealistic, but that is why they implemented multiple branches of government to supersede the potential harm. The executive power is still largely limited and that is why Lincoln’s potential abuse of power is focused on the limited duration of the Civil War. It is interesting to note that the Supreme Court quickly adjusted the executive’s power after it was no longer necessary during the time of war, by finally stating that the Lincoln expanded his power when he created special military courts. While I still do not agree that the special military courts were abusive, it is an example of how other branches of government adapt to systems of power during and after the war.
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When the Framers created the constitution, they wrote it with the intention that they wanted to foster a government that would not fall under a dictatorship. When the Civil War broke out, the actions of the Lincoln administration was questioned due to its extension of executive power and Lincoln was deemed as a dictator. President Lincoln expanded his power by declaring that the South’s rebellion was a national threat and so he ordered unionized military to preserve the nation. Through this justification, Lincoln suspended constitutional rights such as habeas corpus and enlarged his army by promising to emancipate enslaved people. Lincoln saw it was under his discretion, during war, to withhold such rights: “the right to place persons under arrest without warrant and judicially showing the cause of detention; the right to seize citizens property [eccetera]” (pg. 37). His actions were debated by two parties. One, saw his actions as a constitutional threat, encouraging the presidency to change into a dictatorship, having long lasting harmful effects to the nation. The other party validated his actions stating that president took an oath to protect the nation so he would do just that; thus, president should have the ability to enumerate power when the nation is being threatened.
In my opinion, Lincoln’s actions were not an abuse of power, under the constitution. Unfortunately the president’s executive power has very few limitations allowing the president to whatever they want and judicial review helped further expand such powers. The fact the constitution states that the president has the responsibility to “preserve, protect and defend the constitution” while also being the “commander-inChief fo the army and navy” enabled Lincoln to create his version of war power. I do believe that Lincolns actions have enabled other presidents to expand their power as well, having negitive impacts on our nation and peoples rights.
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When the Framers created the constitution, they wrote it with the intention that they wanted to foster a government that would not fall under a dictatorship. When the Civil War broke out, the actions of the Lincoln administration was questioned due to its extension of executive power and Lincoln was deemed as a dictator. President Lincoln expanded his power by declaring that the South’s rebellion was a national threat and so he ordered unionized military to preserve the nation. Through this justification, Lincoln suspended constitutional rights such as habeas corpus and enlarged his army by promising to emancipate enslaved people. Lincoln saw it was under his discretion, during war, to withhold such rights: “the right to place persons under arrest without warrant and judicially showing the cause of detention; the right to seize citizens property [eccetera]” (pg. 37). His actions were debated by two parties. One, saw his actions as a constitutional threat, encouraging the presidency to change into a dictatorship, having long lasting harmful effects to the nation. The other party validated his actions stating that president took an oath to protect the nation so he would do just that; thus, president should have the ability to enumerate power when the nation is being threatened.
In my opinion, Lincoln’s actions were not an abuse of power, under the constitution. Unfortunately the president’s executive power has very few limitations allowing the president to whatever they want and judicial review helped further expand such powers. The fact the constitution states that the president has the responsibility to “preserve, protect and defend the constitution” while also being the “commander-inChief fo the army and navy” enabled Lincoln to create his version of war power. I do believe that Lincolns actions have enabled other presidents to expand their power as well.
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During the Civil War Lincoln exercised extreme powers. War calls for drastic measures at times, but we should still abide by some rules. He abused his power at different times during the war. The issue of conscription which allowed him to draft men into war without congress authority disguising it in the Militia Act of 1862. By doing so it allowed states to devise their plans to raise militias in any manner of their choosing as long as it was within the President’s regulations. Another overreach was Lincoln’s act of forming a new code of law out in the field of armies. He enacted this power through a general order. The legislative branch is suppose to give the President the authority to do such acts. In all the Congress has the power to provide the conduct of war unless extenuating circumstances arise which need attention right away in these case the President can act.
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One unprecedented action that Lincoln took during the civil war was to issue the Militia Act of 1862 which solidified the military draft for the first time during wartime. “These regulations permitted State governors to devise for their States compulsory systems of raising the militia if they preferred not to follow the plan included within the President’s, regulations” (37). Lincoln expanded the size of the military with the act and the use of volunteers and using the force of the militia to suppress any form of rebellion against him. He has also used military spending money without notifying Congress. Another unprecedented action that he took during the civil war was the suspension of habeas corpus. The writ of habeas corpus protects an individual from being unfairly imprisoned. Lincoln’s choice to do this was to deter rebels and dissenters who opposed what he was doing. Many of his political opponents declared his move unconstitutional, but Congress overwhelmingly agreed with him, declaring the suspension of habeas corpus correct in case of a national emergency. The use of militia to silence dissents is an abuse of executive power. It is intimidation for people to stand in line in what they should be doing and not what they believe is right.
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Two of the unprecedented actions President Lincoln took during the Civil War were to suspend habeas corpus and to preemptively call for volunteers in his 75,000 militia prior to congressional approval. The constitutionality of these measures and indeed others may fall into one of the many legal grey areas in the Constitution,especially when it comes to executing the office of the president. Civil war was unprecedented and perhaps executive power was to be used broadly but not without consideration until procedure and precedent could be set for war time powers. As quoted in The Constitution and War Powers, “ War breaks down the rule of law and substitutes it with the rule of force.”, this conveys the urgency in decision making when under attack or facing a rebellion. It is clear that the president is tasked to protect and honor the Constitution, but the idea of suspending some of its points due to extenuating circumstances, does not align with the spirit of the document. Despite how it may handicap a military body I believe it is dangerous to skirt the Constitution in the name of necessity.
The Civil War was uncharted Constitutional territory, and I appreciate that hesitation on the behalf of the US government due to bureaucratic legislation could have given the confederacy time to recover territory or retaliate. But consider how dictators are very successful at waring, and this may be due to the ability to act decisively and quickly. But that’s dangerous, because dictators sell themselves as champions of a country’s values and at some point some leaders can begin to make up their own values and take more control due to what they deem is extenuating circumstance. If it’s in a leader’s power to discriminate between the rights of people during war times or not, the wrong leader can use that power to declare war to gain more executive power.
I think that this opinion of the court in reference Milligan points out the danger best,
“has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln,”
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