Chaos and bedlam
The Habeas Corpus Suspension Act of 1863 was an Act of Congress that authorized Abraham Lincoln to suspend the right of due process for a person detained or imprisoned. It was passed by Congress and signed into law by the President as an emergency measure during the American Civil War.
In effect, the Habeas Corpus Suspension Act made legal what Lincoln had — quite illegally — already done. At various times during the early years of the war Lincoln instructed his field officers to jail insurrectionists, renegade newspaper editors, Confederate sympathizers and so on without charge or trial. Passage of the Act meant that he could heretofore continue to do so without having to worry about such pesky niceties as breaking this most fundamental law of the US Constitution.
It was an extraordinary measure for extraordinary times. The country was in such dire straits that in order for Lincoln to continue to discharge his sworn obligation to “preserve, protect and defend the Constitution of the United States” it became necessary for him to violate it. Such corrective necessities are part and parcel of the inherent powers of the presidency, powers that Lincoln explored and employed to a further extent than had any president before or since. The times required it.
It would be both irresponsible and alarmist hyperbole for me to suggest that we are in the midst of a second civil war today. But it would also be foolish optimism for me to suggest that we do not face a crisis of disunity today so dreadful as to earn these times a name nearly as consequential. What do we call it when forces inside the government and at large in a significant portion of the population are bent on destroying the Republic and replacing it with a dictatorship? An insurrection in embryo? A Civil Cold War?
I don’t know its name, but I do know what it is, and I know that the emergency powers of the presidency could be needed, if not now then very soon. When a presidential candidate calls upon the forces of “chaos and bedlam” as a threat aimed at the Supreme Court calculated to intimidate and frighten that court into excusing his past criminalities, when he uses that language to inspire and mobilise his radical base into violent action, I suggest it’s time for the President to employ his inherent powers.
Donald Trump has sworn to invoke the Insurrection Act of 1807 on the day he retakes office. I am suggesting that the time may be coming — if it hasn’t already arrived — when President Biden should do the same now, while he can.
Several members of the Congress and the Senate continue to enjoy employment and power in direct violation of the Constitution they swore to serve. They participated in an insurrection. They gave aid and comfort to a mob that attacked the Capitol, a mob that threatened the lives of its members engaged in peaceful transition of power, a mob that did violence to the police protecting it.
They are now using their power to impeach the President without specific charges. They have effectively usurped the inherent powers of the presidency for themselves, and they would even go as far as to revoke habeas corpus in the service of that usurpation if they could get away with it. We know they would because they have said as much.
The radical members of the Republican Party are terrorists. They employ terroristic threats in the service of one man, Donald Trump, and one agenda, the MAGA belief that American democracy must die and be permanently replaced by the terrorists themselves.
The power some Republicans wield in Congress is illegal. Article 3 of the fourteenth amendment says as much. They are engaged in open rebellion against the United States government and there is a remedy. That remedy is to be found in the law, in the Insurrection Act, in Lincoln’s precedent employment of inherent powers. The time to use those powers could be once again upon us.
In response to the state of Colorado obeying the Constitution and disqualifying Trump from candidacy, Trump instructed his lawyers to write, “The court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans.” Echoing Trump’s repeated claims in social media they further threatened that, if other states follow Colorado’s lead, it would “unleash chaos and bedlam.”
This is yet another in a long series of stochastic threats, made repeatedly by Trump and now formalised by his lawyers, to provoke an insurrection against the laws of the United States if his wishes are not met. I believe it’s time for President Biden to employ the inherent powers of the presidency. America’s greatest president, Abraham Lincoln, used those powers to preserve the Union. The Union is under threat once again and it might soon be time to dust off those powers once more. The times require it.
If such draconian action is taken Republicans will howl. Confederate elements howled at Lincoln. They will call President Biden a dictator. Confederate elements referred to Lincoln as a dictator. It’s time for bold action and let the chips fall where they may. The times require it. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.
Robert Harrington is an American expat living in Britain. He is a portrait painter.