ALABAMA v. LINCOLN

In the Federal District Court for the Eastern District of Maryland, James Trabor, presiding

January 2, 1863

This case, which raises novel questions of the scope and reach of federal power, comes before the Court in an unusual posture.  The State of Alabama, acting through independent counsel residing in Maryland but retained by the Attorney General of Alabama, seeks to restrain the enforcement of the executive order issued yesterday, January 1, 1863, by the President and popularly, if inaccurately, known as the Emancipation Proclamation.

During the 1860 presidential campaign and while he delivered his Inaugural Address after taking the oath of office on March 4, 1861, the President stated publicly on numerous occasions that he had no intention of interfering with slavery where it existed.  In fact, he emphasized – correctly in this Court’s opinion – that he had no power to interfere with the institution where it existed.  The proclamation issued yesterday indicates that the President has had a dramatic change of mind and heart on this question.  That the President acknowledges this sea change is evident from the sophistry he adopted in his manner of signing the order.  He signed it as “Commander in Chief of the Army and Navy.”

The President is, of course, the commander in chief.  But whether the President acts as the nation’s supreme military commander, or as the chief administrative officer of the executive branch, or as the Head of State, he is subject to the nation’s laws and its Constitution.  Alabama argues that there is no aspect of the President’s executive authority that gives him the power to take the action he took yesterday.

The federal government, acting through the Attorney General, has argued that Alabama cannot be heard on this subject because it has declared itself free and independent of the United States.  Because Alabama denies the authority of the federal government within its borders, so argues the federal government, Alabama cannot be heard to complain about an action taken by the government it has disclaimed.

The Court judges that the critical point is that the federal government does not recognize Alabama’s secession.  The fact that Alabama takes a different view on that related but independent issue is irrelevant to the question whether the federal government must respect and adhere to the nation’s laws and its Constitution in its relationship to Alabama and the other so-called Confederate States.

The Constitution gives the government the authority to suspend Habeas Corpus in time of rebellion.  Alabama does not dispute this point.  However, Alabama argues that nothing in the Constitution gives the President the authority to disrupt the property rights of the citizens of certain states.

Alabama and its sister slave states may be thought of as sanctuaries where citizens may hold certain types of property that are not recognized in other states.  It is this rich diversity among the types of property held and used in the several states that has been one of the strengths of this great republic.

Yesterday’s proclamation disrupts this system of diversity.  The entire burden of the order falls on certain citizens within the slave states.  They and they alone must bear the burden of the misplaced philanthropy on display in yesterday’s order.

But is there any evidence that slave-owners in the Southern states have participated in the rebellion against the United States?  The federal government does not provide any.  If slave-owners have participated in the rebellion, is there any evidence that they have produced casualties in the Union ranks?  Again, the respondent’s silence is a powerful testimony.

Fortunately, the Court is not called upon today to decide this case on its merits.  Alabama has shown that the order is suspect, that it is likely that this action was taken out of motives of vindictiveness or bias, and that the statutory and Constitutional authority for the action is questionable.  The federal government has not shown to the satisfaction of this Court that there is a high degree of likelihood that it will prevail on the merits if and when this case is heard on the merits.

The federal government argues that it is in possession of “facts, evidence, intelligence, and analysis” tending to show the effectiveness of the order and its supposed salutary impact on the national war effort.  The Court stands ready to evaluate all this information if and when the federal government deigns to produce it.  In the meantime, the Court believes that its understanding of the complex factors involved in this matter must take precedence over such “facts, evidence, intelligence, and analysis” until they have been fully presented to and evaluated by the Court.

Because of the inherently discriminatory impact of the order on owners of a form of property that is lawful under the Constitution and has been for the three score and fifteen years since the ratification of the Constitution, and because of the unfair burden of the order on selected citizens of the State of Alabama, enforcement of the Emancipation Proclamation is hereby restrained until such time as this case can be heard and argued on the merits.  Because identical issues will be raised with respect to other states that were not represented in this Court, this restraining order shall be in effect nationwide until further notice.

So ordered,

James Trabor, Judge