![]() But on the other hand, he desperately sought to avoid recognizing the legality of secession, the legitimacy of the Confederate government, or the other implications of treating the opposing forces as part of a sovereign nation-state. On one hand, he wanted to afford Confederate soldiers the full rights of belligerents (as opposed to traitors and insurrectionists), at least in part to increase the pressure on the Confederate military to show similar quarter to captured Union troops, and in part to reflect his broader goals of reconciliation once the war was over. Throughout the war, but especially in its early moments, Lincoln walked a razor-thin tightrope when it came to the legal status of the conflict. ![]() The legal problem was that countries don’t blockade themselves. The blockade was never fully successful, but its economic impact on the war, especially in its later stages, is undeniable. By the summer of 1863, that ratio had increased to stopping one out of every four ships, which made blockade-running increasingly unprofitable (if not dangerous). But as the war went on, the blockade became much more effective-as the Union captured more territory (especially Confederate ports) as the Navy gained more ships and as its tactics became more sophisticated. The Court’s 1863 decision in what’s known as The Prize Cases involved four different maritime disputes, all of which arose out of the blockade that President Lincoln unilaterally imposed upon the Confederacy on April 19, 1861-just six days after Fort Sumter surrendered (Congress was out of session, and would not return until July 4, the date on which Lincoln had called them back.) The blockade was a central strategic plank of Winfield Scott’s “Anaconda Plan”-the idea that the Union would use its superior resources, manpower, and geography to strangle the Confederacy into submission by, among other things, denying it the opportunity to trade cotton and tobacco with European powers for the goods and materiel it needed and could no longer obtain from the North.ġ interdicted only roughly one out of every ten ships heading for a Confederate port. In (very loose) honor of Presidents’ Day (a holiday that, IMHO, should be two separate holidays-one for Washington and one for Lincoln), I thought I’d use this week’s issue to write about one of the most fascinating and quietly important Supreme Court decisions during wartime-which had the effect of ratifying one of Lincoln’s most important legal arguments about the Civil War, and, in the process, of openly endorsing the idea that Article II of the Constitution gives the President at least some “inherent” constitutional war powers. (This continues the pattern of the Court not filling its docket, at least by pre-2019 standards.) As a result, the February argument session now includes only six cases, even though, even without adding afternoon arguments, there was room enough for 10. To be clear, the Court has not dismissed the case it is merely sitting on it for now, presumably waiting to see if anything else happens between now and May 11. The amendment was to remove the “Title 42” case from the calendar, almost certainly in response to a suggestion from the Biden administration that the dispute will become moot on May 11 -when the public health emergency on which the COVID-based immigration policy is predicated will expire. The only news to come out of the Court last week was the amended calendar for the February argument session (which starts tomorrow with the first of the two Section 230 cases, about which I wrote in detail last week ). As John Elwood notes over at SCOTUSblog, there were 423 petitions and motions formally on the Justices’ plate last Friday-reflecting the typical build-up during the month-long January/February break. That grant could still come as early as tomorrow at 9:30 EST, when we expect a full slew of orders (mostly denials of certiorari) out of Friday’s Conference. petition challenging a sweeping (and unprecedented) Fifth Circuit decision that effectively invalidates much of the work of the Consumer Financial Protection Bureau (CFPB). The Justices concluded their unofficial mid-winter recess last week without issuing any orders, even though the federal government had asked the Court to grant and expedite a cert.
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