Lincoln smackdown should result in a Bush power grab smackdown!

[FormerRepublican]

In Ex Parte Merriman, the unconstitutional nature of Lincoln's actions in suspending Habeas Corpus and the apprehension of a US citizen for detention under Lincolns authority in suspending Habeas Corpus is clearly argued. This is directly applicable to Bush's view that he has the power to approve warrantless wiretapping and make law through the use of signing statements.

The interesting parts of Ex Parte Merriman:

"As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it him to determine whether he will or will not obey judicial process that may be served on him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress. <17 Fed. Cas. 148>"

and

"It is the second article of the constitution that provides for the organization of the executive department, enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article; but there is nor a word in it that can furnish the slightest ground to justify the exercise of the power. <17 Fed. Cas. 148,149>"

and

"He is not empowered to arrest any one charged with an offense against the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power, for the fifth article of the amendments to the constitution expressly provides that no person "shall be deprived of life, liberty or property, without due process of law"-that is, judicial process. <17 Fed. Cas. 149>"

and

"The only power, therefore, which the president possesses, where the "life, liberty or property" of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires "that he shall faithfully take care that the laws shall be faithfully executed." He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution. It is thus made his duty to came in aid of the judicial authority. <17 Fed. Cas. 149>

The president, therefore, can only execute the laws according to the judicial interpretation, says Taney. And later he uses this reasoning to urge Lincoln to follow the take care clause and release Merryman in accordance with this decision."

http://fly.hiwaay.net/~pspoole/merry.htm

Ex Parte Merriman seems particular applicable to our current situation. And, like Lincoln in Ex Parte Merriman, Bush seems inclined to ignore the Constitution.

WRT the constitution, Section 8 of Article 1 specifically states the power of Congress to:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

No such power is granted to the President under the Presidential powers enumerated in Article II.

The Bill of Rights states:

"Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


--------------------------------------------------------------------------------

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

http://www.archives.gov/national-archives-experience/charters/bill_of_rights_transcript.html

I would read this to mean that if the Constitution doesn't explicitly grant Bush the powers he claims, those powers are NOT held in the executive, but are reserved to the people.

[FogerRox]

1. Yes I agree-- KN R

[0007]

2. I like it!

[DemoTex]

3. Bu$h is to Lincoln ..

As pornography is to the Bible. Period. No comparison.

Mac