the structural difference is this: these other provisions cannot be imposed, and
historically never been imposed, without legislation; HC can be suspended without
legislation and has traditionally been suspended under emergencies by executives.
So, I would ask you in the simplist terms. Do you believe that if foreign power
seized a majority of Congress, thus preventing a quorum and thus preventing
Congress from sitting, that the President would lack the power to suspend habeas
corpus in the war zone. If the president was secure in the White House, but the
"enemy" had seized capital hill, are you arguing that the president could not
suspend HC in Washington DC while the enemy was there?
Paul Finkelman
[log in to unmask] wrote:
> Article one establishes the name of the Legislature to be the Congress a
> two-part body made up of the Senate and the House of Representatives and then
> goes on to discuss other legislative powers and limitations, not executive
> powers and limitations. I am amazed that you don't understand this point,
> but I hope your students do. Section 9 provides:
>
> Section 9.. The Migration or Importation of such Persons as any of the States
> now existing shall think proper to admit, shall not be prohibited by the
> Congress prior to the Year one thousand eight hundred and eight, but a Tax or
> duty may be imposed on such Importation, not exceeding ten dollars for each
> Person.
> 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. [by
> the legislature............. the Founding Fathers didn't deem it necessary to
> end each power or limitation in the legislative section with the term "by the
> legislature", but apparently needed to do so to reach history professors and
> Lincoln apologists-JDS]
> No Bill of Attainder or ex post facto Law shall be passed.
> No Capitation, or other direct, Tax shall be laid, unless in Proportion to
> the Census or Enumeration herein before directed to be taken.
> No Tax or Duty shall be laid on Articles exported from any State.
> No Preference shall be given by any Regulation of Commerce or Revenue to the
> Ports of one State over those of another: nor shall Vessels bound to, or
> from, one State, be obliged to enter, clear or pay Duties in another.
> No Money shall be drawn from the Treasury, but in Consequence of
> Appropriations made by Law; and a regular Statement and Account of Receipts
> and Expenditures of all public Money shall be published from time to time.
> No Title of Nobility shall be granted by the United States: And no Person
> holding any Office of Profit or Trust under them, shall, without the Consent
> of the Congress, accept of any present, Emolument, Office, or Title, of any
> kind whatever, from any King, Prince, or foreign State.
>
> If you can show me where this legislative section provides that the
> President, rather than the legislature, can suspend the writ of habeas
> corpus, I will start calling Lincoln Honest Abe. Please also point out to me
> which of the other powers in this section are held by the executive office.
> Answer: None. Your argument makes no sense to anyone but Lincoln
> apologists.
>
> As to Taney, had Lincoln wanted a full Supreme Court up or down on habeas
> corpus, he could merely have asked for full review, or asked that the full
> Court quash the writ that was served upon him for execution. He didn't,
> because he knew Taney was correct (which time has proven to be the case).
>
> Seems like it is time for some other topic before we wear out Brent's
> patience.
>
> JDS
>
>
>
>
>
>
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--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189
phone 918-631-3706
Fax 918-631-2194
e-mail: [log in to unmask]
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