Obama Administration Says President Can Use Lethal Force Against Americans on US Soil

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136. Preparing for the Hour of Need: Emergency Powers in the United States

Abraham Lincoln assumed office in March 1861 in an already
prevailing crisis atmosphere. Dissolution threatened the Union's
very existence; there were the first traces of open warfare between
the federal government and the southern secessionist states; a
month earlier a provisional government had been set up in the
South, and its Confederate Provisional Congress quickly enacted
emergency powers for its chief executive. These conditions led the
new president in July to express aloud the dilemma of political
power which would face his country as well as other democracies
and future generations. "Must a government, of necessity, be too
strong for the liberties of its own people," he wondered, "or too
weak to maintain its own existence?"

It had not taken Lincoln very long to resolve his personal
dilemma. In the eleven weeks between April and July 1861 he
provided authoritarian leadership in combating the crisis and in
preserving the Union. Acting at his own initiative and without
the benefit of precedent, under no restraint since Congress was not
in session at the time, and on the basis of nonstatutory authority,
Lincoln adopted a series of strong emergency measures by executive
order or proclamation which were previously thought to fall
entirely within the competence of the Congress or at least to
require the latter's approval.

In his own defense President Lincoln used two arguments.
Such measures were valid, first, on the grounds of necessity: "I
conceive that I may in an emergency do things on military grounds
which cannot constitutionally be done by the Congress." Public
safety and the public interest would always have to be given the
highest consideration. His second line of reasoning rested upon a
broad interpretation of the president's constitutional role as commander
in chief of the armed forces. As commander in chief of
the Army and Navy, Lincoln argued, "in time of war I suppose I
have a right to take any measures which may best subdue the
enemy." Powers of national defense, it followed, could only be
exerted by the president of the United States. Lincoln's actions
together with his rationalization for them were to profoundly
influence the debate on separation of powers by virtue of their
being the earliest real precedents; they have also provided the
foundation for similar conduct by later presidents.

In terms of a power balance among the branches and institutions
of government the emergency period of the Civil War represents
clear dominance of the presidency. Programs initiated by
Lincoln had a considerable degree of popular approval; and
neither Congress nor the Supreme Court exercised any effective
restraint upon the president. The legislative branch was willing to
allow the president, in his military role, to prosecute the war as
he saw fit, and his actions either went unchallenged by Congress
or were sanctioned after rather than before being implemented.
Once the crisis was safely over, however, the two other, rival
branches did work to redress the balance in the early Reconstruction
years.

Klieman, A. S. (1979, April). Preparing for the hour of need: Emergency powers in the United States. The Review of Politics, 41(2), 238-239.