(That’s not a typo; I will be referring the proclamations of more than one president.)
Speaking to Fox News’s Greta Van Susteren after the president’s State of the Union address Tuesday night, House minority leader Nancy Pelosi, attempting to justify his unilateral action raising the minimum wage of federal contractors, acknowledged that it would be “much better for Congress to act and for it to be the law of the land more generally” (as opposed to what? less generally?). “But, I remind you,” Pelosi added, “the Emancipation Proclamation was an executive order, many things that happened over time that would not have ever happened waiting for Congress, but then Congress followed through with, in fact, abolishing you know slavery.”
Actually, no, we don’t know. Congress, “in fact,” did not abolish slavery. The Thirteenth Amendment to the Constitution did.
No less confused about his (and our) history is Pelosi’s assistant, Assistant Democratic Leader Rep. James Clyburn (D, SC), who told Huffington Post that he feels “very strongly” that the president should take executive action to prohibit discrimination against lesbians, gays, bisexuals, and transexuals even though the Congress has refused to pass legislation (the Employment Non-Discrimination Act, discussed here) to do that. Clyburn pointed out that “it was an 1863 executive action by President Abraham Lincoln, the Emancipation Proclamation, that led to the end of slavery. I don’t know where I would be today if the executive order had not been used to get rid of slavery,” Clyburn concluded.
Counterfactual history is always uncertain, but there is no reason whatsoever to think that Rep. Clyburn would be anywhere other than exactly where he is today if the Emancipation Proclamation had not been proclaimed. That’s because it did not actually emancipate any slaves. As the National Archives has pointed out, the Emancipation Proclamation “applied only to states that had seceded from the Union, leaving slavery untouched in the loyal border states. It also expressly exempted parts of the Confederacy that had already come under Northern control.”
In other words, Lincoln purported to free only some slaves and only where the Union lacked the ability to do so.
The fact that the Emancipation Proclamation was not a necessary precursor to the freedom of Rep. Clyburn’s ancestors or his career is not, however, the primary reason that it is a highly problematic precedent for the sorts legislation bypasses being pursued by President Obama. Not, that is, unless the president and his supporters wish to claim that he is waging war against domestic enemies of the state.
The Emancipation Proclamation was a war measure justified, and justified only, by the president’s power as Commander in Chief. As University of California at Berkeley law professor (and former Bush Justice Dept. official ) John Yoo pointed out last year, on the Proclamation’s 150th anniversary, Lincoln rooted the constitutional justification for the Emancipation Proclamation as “a fit and necessary war measure for suppressing” a rebellion against the United States. “Lincoln never claimed a broad right to end slavery forever; only the Thirteenth Amendment to the Constitution could do that. The Emancipation Proclamation remained only an exercise of the president’s war power necessary to defeat the enemy.”
Of course, President Obama does have a disturbing tendency to think of the recalcitrant (read “Republican”) House of Representatives and its recalcitrant constituents who disagree with him as enemies, and so maybe the Emancipation Proclamation is a fitting model for him after all.
