TRIVIA 0026: ON THE TEMPORARY RESTRAINING ORDER ISSUED BY THE SUPREME COURT AGAINST DOJ CIRCULAR NO. 41 AND THE WATCH LIST ORDER ISSUED BY DOJ AGAINST GLORIA MACAPAGAL ARROYO. CAN THE EXECUTIVE LEGALLY DEFY THE SUPREME COURT? IS THERE A HISTORICAL PRECEDENCE? CAN THE ACT OF JUSTICE SECRETARY DE LIMA IN NOT FOLLOWING THE TRO ISSUED BY THE SUPREME COURT WHICH LIFTED THE WATCH LIST ORDER SHE ISSUED BE JUSTIFIED?
There is a historical precedence in theUS. President Lincoln defied the Order of Chief Justice Taney (EX PARTE MERRYMAN CASE) which directed him to release a rebel sympathizer (Mr. Merryman) from prison. In fact Chief Justice Taney issued a well-reasoned Order castigating Pres. Lincoln for suspending the writ of habeas corpus inMarylandwhich only Congress can do.
The ground of President Lincoln’s defiance is that he has the constitutional duty to enforce the law. An author commented:
Lincoln could well have quoted the great John Marshall to the recalcitrant old Taney. Marshall had written for a unanimous Supreme Court in the famous case of McCullough v. Maryland in 1819: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”48
OPINION: Probably in like manner, the Executive has the constitutional duty to enforce the law on elections and the law on plunder. There is no prohibition in the Constitution barring the Executive from issuing a watch list order. Besides, the right to travel of GMA is subordinate to the right of the citizenry to get justice for injury committed against the Republic for the rigged elections and for the many anomalies involving millions of pesos for which the Arroyos are being charged in DOJ for plunder.
Read more below (Excerpt from AMERICA THE LAST BEST HOPE, VOL. 1, William J. Bennett, 2006):
Lincolnwould take no chances with strategic Marryland. He authorized the temporary imprisonment of pro-secession state legislators and the suppression of disloyal newspapers in the state. He also suspended the writ of habeas corpus. That meant more arrests could follow, without recourse to the courts.Lincoln’s suspension of habeas corpus was the first such action on such a broad scale. Still, the Constitution specifically allows for such a suspension in time of rebellion. (“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.” Article I, Section 9). His quick and effective actions inMarylandare debated to this day. TheOldLineState’s official song, ‘Maryland, My Maryland,” which speaks of spurning the “Northern scum,” still contains these anti-Lincoln lyrics:
The despot’s heel is on thy shore,Maryland!
His torch is at thy temple door,Maryland!
Avenge the patriotic gore
That flecked the streets ofBaltimore,
And be the battle queen of yore,
Maryland! MyMaryland!
The despot referred to in the first stanza is President Lincoln.
Surely rebellion was afoot. If a vote of the white citizens ofMarylandhad been taken, the state would very likely have seceded. Western Maryland was loyal to the Union, just as mountainous westernVirginiawas. But crowdedBaltimoreandMaryland’sEastern Shorewere “secesh.”Lincolnwas determined to saveMarylandand the nation’s capital for theUnion.
He had little choice. Secession was in the air. Disloyalty, real and suspected, was everywhere. The situation was critical. The Confederate secretary of war boasted that the rebel flag would “float over the old Capitol dome before the first of May.”44
When the creaking Chief Justice Taney ordered the release of a rebel sympathizer, a civilian, Lincoln ignored him. 45 Taney’s opinion in Ex Parte Merryman was actually a carefully reasoned analysis of history and constitutional law. Taney scoldedLincolnfor suspending habeas corpus, a power which Taney argued the Constitution implicitly gave to Congress, not to the president. Taney quoted the great John Marshall to good effect.46
John Merryman had ben arrested by military authorities acting underLincoln’s expansive orders. They charged Merryman with helping to blow up railroad bridges leading to the endangered capital ofWashington. 47 Taney seemed not to be concerned with this mortal threat to the life of the republic. Could a rebel blow up the bridges over which returning congressmen must pass in order to reassemble and vote a suspension of habeas corpus-and then point to Congress’s failure to convene as a justification for court orders against the president?
Lincolncould well have quoted the great John Marshall to the recalcitrant old Taney.Marshallhad written for a unanimous Supreme Court in the famous case of McCullough v. Maryland in 1819: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”48
What could be more legitimate for the embattled President Lincoln than to keep disloyal elements from seizing control of the nation’s capital, preventing the Congress from meeting, and thereby breaking up the government? It is a good thing the widely rumoured arrest of the aged Chief Justice never went forward. But it must be recorded that in heat of civil war,Maryland’s Roger Brooke Taney did nothing to protect the nation he had sworn to serve. It is also true that it was Taney’s disastrous Dred Scott opinion that, as much as anything else, had put the nation’s young men at bayonet point with one another.
Many high-ranking military officers-but no enlisted men- “went with their states.” The superintendent of the U.S. Naval Academy inAnnapolis,Maryland, sensed the spirit of his neighbors. Captain Franklin Buchanan joined the Southern forces.
Even many in the North were willing to let theUnionbe sundered. New York Tribune editor Horace Greeley wrote of the seceding states: “Wayward sisters, depart in peace.” Many abolitionists-but not Frederick Douglass-similarly saw secession as a means to rid theUnited Statesof slaveholding states. Many Northern whites hated the abolitionists and blamed them for the war. When he tried to address a public meeting inBoston, the heart of anti-slavery sentiment, Douglass was thrown down a staircase by hired thugs. But he gave as good as he got, fighting them off “like a trained pugilist.49
As he reported in his first Message to Congress,Lincolnacted to preserve theUnion. THt was the first duty of the president. The chief executive also has a constitutional duty to “take care that the laws be faithfully executed” 9Article II, Section 3). Pointing out that the laws were being flouted in all the seceding states,Lincolnasked” “Are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?50 Despite arguments at the time (and those that continue to this day) that Lincoln was acting as a dictator, the president reminded Congress that it shared responsibility for saving the Union and that it had the ultimate power to remove him from office if Congress found he had violated his oath of office. His Fourth of July message spoke powerfully of the stakes involved in the war:
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