That the location of the clause in question means that it is inherently and solely a legislative power is certainly a common POV. That it is not the only POV for which a case can be made is shown best by this article.
The “Journal of the Abraham Lincoln Association”? Really. Well I guess that settles it. The fact that the entire and only function of Article I is to lay out the powers of Congress (and some limitations) because it would conflict with Congress), including pointing out areas in which states cannot legislate, doesn’t matter. It also doesn’t matter that it was well settled law by 1860 that inclusion of the power to suspend in Article I was reserved to Congress or that commentators such as Joseph Story pointed out that this was a Congressional power. No, somebody writes an article that doesn’t address important sources, and dismisses others (e.g. Randall), and now it is all up for grabs. Whee! This Constitutional Law stuff is really easy!
Thanks, SL for that link.
I read it, and printed it (13 pages!!) for future reference.
Of the several arguments advanced, the simplest & best I liked is Horace Binney's 1862 article, where he compares the Constitution to English law, in which Parliament can allow Habeas Corpus suspension in emergencies, but only the chief executive can determine when such conditions are met.
Binney wrote that likewise, the Constitution allows Habeas Corpus suspension in emergencies, so only the chief executive can determine when such conditions exist.
Lincoln's argument, in his July 4, 1861 address to Congress, is essentially the same: since the Constitution itself is silent on who has such powers, and Congress may not be in session when a crisis arises, the President must act to fulfill his oath to "protect, preserve and defend" the Constitution and the Republic it defines, by ordering suspension of Habeas Corpus.
At the same time, Lincoln suggested Congress offer up legislation according to its "better judgment".
And Congress, after lengthy deliberations, eventually did just that, authorizing Lincoln's actions in the future, and making no comment on his past suspensions.
It was thought that any such comment would suggest disapproval, and so was studiously avoided.
Anyway, thanks again for the link.
Don't know how I can get 13 pages of legal opinion reduced into FR-appropriate bullet points & bumper sticker arguments ;-) but will keep it handy, just in case!