by Diane Rufino, November 22, 2014
According to Democratic House Minority Leader Nancy Pelosi, President Obama’s plan to excuse the illegal action of millions of immigrants not unlike Abraham Lincoln’s effort to free slaves. At first I thought it was a joke. And then I remembered two things: Nancy Pelosi is an idiot and has no sense of humor.
In a press conference on November 20, Nancy Pelosi said: “Does the public know that the Emancipation Proclamation was an executive order? People have to understand how presidents have made change in our country.” She continued: “Remember, President Lincoln said, ‘public sentiment is everything… I wish the Republicans would at least give the public a chance to listen to what the president is trying to do.”
Listening to the people is exactly what the President should do…. Maybe he already forgot, but the election this month can be seen as a complete rejection of his policies. Republicans just won complete control of both the House and Senate for the session that will begin in January. Voters turned out to do what they see as an urgency…. to turn out government leaders who are willing to support the President in his agenda on immigration, healthcare, and more. The urgency in this election was not to grant amnesty to “fix the immigration problem” but to PREVENT the President from doing so.
Perhaps Nancy Pelosi looked to President Lincoln for a new Democratic talking point because, after all, Lincoln was a tyrant and consolidated executive power to act extraordinarily in extraordinary circumstances. But I question whether our current broken immigration situation amounts to an “extraordinary circumstance.” The only reason we have this current immigration problem is because the government has refused to enforce immigration laws, an express enumerated power delegated to it. The government can’t use a crisis of its own making as a reason to invoke unconstitutional powers.
Just because one president overstepped the law doesn’t mean another president should. The people are entitled to a government that is restrained by its charter. The American people are entitled to a government that operates within its boundaries so they can be comforted that government acts consistently, legally, and not in violation of their rights and interests. Nancy Pelosi likes to think that Presidents can define issues as “crises” and thereby usurp power to address them. And then she believes that this type of conduct makes a President “great.” That type of power grab made Adolph Hitler a monster. That type of power grab made Abraham Lincoln a tyrant and gave rise to all-powerful government rather than a subordinate one. Luckily for the government, the party that wins a war has the luxury of writing the history books, providing the talking points, re-writing its reasons for the bloodshed, and demonizing the other side. The admiration the country has for Abraham Lincoln has everything to do with the great debt the government owes to him and how his legacy has been defined.
So, what’s the real story behind the Executive Order? Abraham Lincoln issued a preliminary Emancipation Proclamation on September 22, 1862. This date was chosen to coincide with the news of the battle at Antietam, near the village of Sharpsburg, Maryland. Antietam is infamously known as being the bloodiest single day of fighting in the Civil War. Although the battle is officially recognized as a stalemate, the North attempted to claim it as their victory. Hence, it would be a perfect time for Lincoln to tie a northern victory with the emancipation of slaves. The preliminary Emancipation Proclamation stipulated that if the Southern states did not cease their rebellion by January 1st, 1863, then the Proclamation would go into effect. According to Lincoln, if the slaves were being forced to aid the Confederate war machine, by working in the fields and hauling armaments and building fortifications, he would act in his capacity as commander-in-chief to liberate that labor. When the Confederacy did not yield, Lincoln issued the final Emancipation Proclamation on January 1, 1863. U.S. Navy General Order No. 4, issued on January 1, 1863 declared “that all persons held as slaves” within the rebellious states “are, and henceforward shall be free.” It was issued as the nation approached its third year of bloody civil war and as the North continued to watch its defeat at the hands of the South. With the Emancipation Proclamation of January 1863, Lincoln decided to go one step further. He would not only to free the slaves outside of Union-controlled areas but also to enlist any black man as a soldier in the Union army. Thus black men could be part of the movement to liberate those in bondage.
The Emancipation Proclamation broadened the goals of the Civil War. While slavery had been a major issue that instigated tensions between the North and the South, Lincoln’s only mission at the start of the war was to keep the Union together. The Proclamation made freeing the slaves an explicit goal of the Union war effort, and was a step toward abolishing slavery and conferring full citizenship upon ex-slaves. But make no mistake, the measure was not inspired by any affection for the slave or any stirring ambition to see them free in white-dominated society. It was a cold calculated initiative to undermine the South. Although the Emancipation Proclamation did not end slavery in the nation, it captured the hearts and imagination of the slaves who were held as property in the South. It encouraged insurrection among the slaves against their white plantation owners (who, at the time, were mostly women and children). It eroded the loyalty and devotion of confederate soldiers because now their attention was torn between the war and between their families at home with this new threat from slaves who are encouraged to undermine the confederate war effort. Furthermore, the sooner the uprising could occur, and the greater the confederate effort could be undermined, the sooner the opportunity for local slaves to be liberated. After January 1, 1863, every advance and victory of federal troops would bring freedom to the slaves in the South. of undermining the confederate effort were almost. After January 1, 1863, every advance of federal troops would offer them immediate freedom. And again, the Proclamation announced the acceptance of black men into the Union Army and Navy, enabling the liberated to become liberators. [By the end of the war, almost 200,000 black soldiers and sailors had fought for the Union and freedom].
The Emancipation Proclamation was solely designed to energize the war effort because the North was still losing at that point, and losing badly. Far greater numbers of Northern soldiers were being killed in the many battles than Confederate soldiers. But the Proclamation lacked any force of law with respect to actual emancipation. First, it purported to free slaves in territory that no longer was under the jurisdiction of the United States government. The southern states had seceded from the Union and immediately formed the Confederate States of America, a new and independent, sovereign nation. The only way slaves could be emancipated was if the North won the war. Second, the Emancipation ignored legislation that Congress had passed and Constitutional provisions regarding slavery and slaves, including the controversial Fugitive Slave Laws. True, Congress (lacking any members from Southern states) moved towards limiting slavery and freeing slaves, but it refused to do so in the states. Their measures only applied to territories. As in the antebellum era, Congress adamantly refused to legislate regarding slavery in the states. The issue was deemed a state prerogative on which Congress had little or no constitutional authority.
The constitutional question is whether President Lincoln overstepped his authority in signing the Executive Order – U.S. Navy General Order No. 4. As President and Chief Executive, the Proclamation was an assault on Congress as the law-making branch of government. And he seems to have understood that. He seems to have understood that the federal government’s power to end slavery in peacetime was limited by the Constitution, which before 1865, committed the issue to individual states (through the Article V amendment process). But with the Civil War going on, Lincoln issued the Proclamation under his authority as Commander in Chief of the Army and Navy, outlined in Article II, section 2 of the US Constitution. As such, he claimed to have the martial power to free persons held as slaves in those states that were in rebellion “as a fit and necessary war measure for suppressing said rebellion.” In other words, his position was that Congress lacked power to free all slaves within the borders of rebel held states, but as Commander-in-Chief, he could do so if he deemed it a proper military measure. He did not have this authority over the four slave-holding states that were not in rebellion.
The only way Lincoln could support this approach is if he completely ignored the articles of secession of the eleven southern states that decided, in special convention, to issue in order to legally separate themselves from the government of the United States – exactly as the 13 original states did with the Declaration of Independence to dissolve their bonds of allegiance with Great Britain. In fact, the wording of several of the Ordinances of Secession are designed very much after the Declaration (just so that the Lincoln administration should have no doubt about their intentions). Furthermore, to support his approach, Lincoln would have to completely ignore the status of the Confederate States of America as a new, independent, and sovereign country. He would have to ignore their Constitution, which was based almost exclusively on the US Constitution, except for provisions regarding the power to enforce protective tariffs and slavery.
During the time of the Civil War, the US Congress took up the issue of slavery. In January 1862, Thaddeus Stevens, one of the leaders of the Radical Republican faction of the Republican Party and the Republican leader in the House, called for total war against the South to include emancipation of slaves, arguing that emancipation, by forcing the loss of enslaved labor, would ruin the economy of the South. On March 13, 1862, Congress approved a “Law Enacting an Additional Article of War”, which stated that from that point onward it was forbidden for Union Army officers to return fugitive slaves to their owners. On April 10, 1862, Congress declared that the federal government would compensate slave owners who freed their slaves. Without the South in the Union and without any members of Congress from the South to represent its interests, there apparently was no need to respect the Fugitive Slave provision of the Constitution. (Slaves in the District of Columbia were freed on April 16, 1862, and their owners were compensated). On June 19, 1862, Congress prohibited slavery in all current and future United States territories (though not in the states), and President Lincoln quickly signed the legislation. By this act, they repudiated – nullified – the 1857 decision by the US Supreme Court in the Dred Scott case, which announced that Congress was powerless to regulate slavery in U.S. territories
So the question is whether the power President Lincoln assumed as Commander-in-Chief allowed him to act outside of the Constitution’s structure of separation of powers and checks and balances during the Civil War. I would submit that he didn’t. He merely wanted to extend to those collateral parties to the war – the slaves – a vested interest in fighting for the North and undermining the effort of the South. It was sabotage by usurpation.
Is Nancy Pelosi starting this Democratic talking point for the same reason Lincoln issued the Emancipation Proclamation? Are they hoping that Ohama’s amnesty plan will energize those here illegally? Are they hoping to sabotage our rule of law by claiming there is precedent for unconstitutional executive actions?
Well, perhaps in this regard, the President’s amnesty plan is designed to resemble the Emancipation Proclamation.
Let’s go back to President Obama’s plan for the amnesty of 5 million illegal immigrants. In light of the recent election and voter mandate (he got slaughtered in the election!) and despite a recent Rasmussen poll which shows that 62% of Americans do NOT want the president to act on immigration reform without the approval of Congress, the president signed two Executive Orders yesterday, November 21, onboard Air Force One (en route to Las Vegas). The Executive Orders would delay deportation for millions of illegal immigrants. They will grant “deferred action” to two illegal immigrant groups – (1) parents of US citizens or legal permanent residents who have been in the country for five years, and (2) young people who were brought into the country illegally as of 2010. During his televised 15-minute primetime speech Thursday evening from the East Room of the White House, Obama said his administration will start accepting applications from illegal immigrants who seek the deferred actions. Those who qualify will be granted protections for three years.
It’s no wonder that Obama has chosen to go to Las Vegas for his first stop in drumming up support for his plan. Hispanics are a growing and powerful constituency in Nevada.
In general, the American people seem confused as to what an Executive Order is, what applicability is has, and how much authority the President has to issue them. If you look at social media and blog responses, those who support Obama’s amnesty plan claim that Obama is only being criticized unfairly because he is black and as proof, they cite the fact that President Bush signed far more Executive Orders. This is a typical liberal response, lacking in any fact or logic. Yes, President Bush signed a butt-load of Executive Orders (and we’re talking Kim Kardashian size butt loads). But each executive order is different. A president can issue an executive order to clarify his position, to further manage “executive” operations, give directions, give instructions, make declarations, make proclamations (like the one to establish the National Day of Prayer), give directives, etc. They are mainly for clarification and for instructions. They further explain something that Congress has passed. When Executive Orders are pursuant to valid Constitutional powers, they have the force of law. But Executive Orders are ALWAYS subject to the Separation of Powers doctrine. The President can NEVER assume powers not granted to him under Article II.
In 1950, North Korean troops invaded the Republic of Korea. Backed by a UN Resolution, President Truman sent U.S. troops to aid South Korea. He did not ask for a declaration of war from Congress. Because of the “war,” demand increased for steel and prices had risen. As steel prices rose, the steel worker union, the United Steel Workers of America, threatened a strike unless they received a wage increase. President Truman believed that it would be a disaster for the nation if steel production were stopped and he ordered his Secretary of Commerce to take control of and operate the steel mills. Truman wanted to make sure that the military effort in Korea would not be disrupted.
The steel mill owners believed President Truman’s seizure was unconstitutional because it was not authorized by any law and they took it to the Supreme Court. Truman argued that his position as Commander-in-Chief gave him the necessary power to seize and operate the mills. (Sounds similar to what Lincoln did with the Emancipation Proclamation). In 1951, the Supreme Court issued its opinion in the landmark case known as Youngstown Steel v. Sawyer. This is an important case and one that is certainly studied in law school. The Court struck down President Truman’s Executive Order and through its decision (full of cajones), it helped to curb presidential power. Perhaps it was an attempt to push back against presidents (like FDR and Truman, thinking themselves untouchable because of their management of the war) who had greatly sought to enlarge the powers of the Executive. The Court disagreed with Truman and held that neither the Constitution nor any act of Congress allowed the President to take over the steel mills. “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” There had been no act of Congress, so the Court turned to the Constitution. The Court ruled that the President’s role of Commander in Chief power did not authorize the action, and neither did the “several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” In other words, his power to see that the laws are faithfully executed should NOT be confused with the power to make law in the first place.
The ruling was based on the Constitution’s Separation of Powers doctrine. Legal scholars point out that the Court did not rule that any seizure would have been unconstitutional. Rather, Truman’s actions were unconstitutional because he did not have any legislative authority.
The case stands for the bright line rule that a President CANNOT act where Congress has decided NOT to act.
Another argument pushed by supporters of the president’s Executive Order, including Nancy Pelosi herself, is that Obama is not doing anything that Ronald Reagan didn’t do when he was president, in deferring the removal of certain immigrants. I believe there is a clear difference though. Congress had passed sweeping immigration reform legislation in 1986, granting full-blown amnesty. In Obama’s case, Congress hasn’t passed any immigration reform. I would remind folks to visit the Youngstown Steel case.
In 1986, Congress passed a full-blown amnesty, the Simpson-Mazzoli Act, conferring residency rights on some 3 million people. Simpson-Mazzoli was sold as a “once and for all” solution to the illegal immigration problem but ended up being riddled with fraud. It was passed as immediate amnesty with strict enforcement measures to be put in place for the future. Unfortunately, the bill failed to anticipate the situation where certain members of a single family qualified for amnesty while others did not. Nobody wanted to deport the still-illegal husband of a newly legalized wife. Reagan’s Executive Order attempted to address this situation and tidy up Congress’ immigration scheme. The public didn’t view it to a unilateral initiative to reform immigration and it was not seen as controversial.
In other words, Ronald Reagan acted in conjunction with Congress and in furtherance of a congressional purpose. Obama is intentionally ignoring Congressional purpose.
The executive action by President Obama, however, would follow not an act of Congress but a prior executive action of his own. Remember when he suspended enforcement against the so-called “dreamers” by Executive Order in June 2012. The 2012 Executive Order announced a change in immigration policy; the government would stop deportations and begin granting work permits for some Dream Act-eligible students. The policy change applied (applies) to young undocumented immigrants who entered the United States as children, following along the same lines as the Dream Act, a bill that passed in the House of Representatives but failed in the Senate in 2010. (Dream Act-eligible young people are referred to as “DREAMers”).
No one from the left seems to care about what lies at the very core of the president’s actions. Let’s be clear…. President Obama has NO authority to do what he wants to do – to grant legal rights to illegal immigrants. But never-mind the substantive issue here, the President has NO right to sidestep Congress and to ignore the Constitution. He has no right to rule by fiat and he has no right to act like a King. No matter where a person stands on the issue of amnesty, it is the conduct by this president and the audacity with which he approaches the job that should make every American fuming mad.
The lies, the accusation, and the frivolous comparisons to Ronald Reagan are bad enough. But when I hear folks out there comparing the Amnesty plan to the Emancipation Proclamation and illegal immigrants to slaves, I want to scream. I want to remind those on the left who the REAL slaves are, because they really don’t have a clue. The real slaves are the tax-paying middle class who aren’t exempt from the federal income tax scam but aren’t rich enough to have any lobbying power or ability to bribe anyone for favors. They are the workers… the ones who get up each day, ride a bus, train, plane, etc to work so they can pay for a house, college, car, clothes, food, and to support the kids that they carefully planned to have. The slaves are the ones who pay taxes at the expense of those who don’t but have no say in how their money (their property) is used to increasingly allow those deadbeats to live more comfortably. The slaves are the ones who are forced to pay for the healthcare plans of those who, in great part, don’t give a rat’s ass about their health or how to improve it. The slaves are the ones whose kids who kids can’t get into top-notch schools based on their high grade point averages because they are not a minority. The slaves are the ones who have to save all their receipts and fill out lots of paperwork each April, hoping that the government won’t send a letter accusing them of not paying enough, while welfare recipients can use their money (OUR money) to buy cigarettes, alcohol, and luxury items, and go to gambling casinos. Slaves are the ones who take voting seriously and go to the ballot box well-informed of the issues and with skin in the game but immediately have their votes cancelled out by ones that are cast by low-information voters without skin in the game for the sole purpose of making sure they continue to get what the other voters can provide to them. But most importantly, slaves are the ones who, because they pay taxes and have files with the IRS, are forced to censor themselves and refrain from protest for fear that the government will use their henchmen (the IRS) to audit and otherwise harass them.
The real slaves want the President to uphold the Constitution and stop trying to make a mockery of it.
As mentioned earlier, the Emancipation Proclamation carried no legal authority and freed no one, and so in this sense, I hope that Obama’s lawless behavior will be recognized similarly and have similar results.
Nancy Pelosi Compares Obama’s Amnesty Bill to Emancipation Proclamation – https://www.youtube.com/watch?v=KNxglS1E3pc
Nancy Pelosi to GOP on Immigration Action: ‘Look to Ronald Reagan, Your Hero’ – https://www.youtube.com/watch?v=AYLrmnW3JHo (“The President’s Actions are as good as it can be under the law…. That doesn’t mean we wouldn’t like to have a bill…. “ Nancy Pelosi)
Billy House, “Pelosi Compares Obama Immigration Order to Emancipation Proclamation,” National Journal, November 20, 2014. http://www.nationaljournal.com/congress/pelosi-compares-obama-immigration-order-to-emancipation-proclamation-20141120.
Henry L. Chambers Jr., “Lincoln, the Emancipation Proclamation, and Executive Power,” Maryland Law Review, Vol 73, Issue 1, Article 6 (2013. http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3599&context=mlr or http://digitalcommons.law.umaryland.edu/mlr/vol73/iss1/6
The Emancipation Proclamation, the Navy Department Library. http://www.history.navy.mil/faqs/faq57-2.htm
Gabriel Malor, “No, Reagan Did Not Offer an Amnesty by Illegal Executive Action,” The Federalist, November 20, 2014. http://thefederalist.com/2014/11/20/no-reagan-did-not-offer-an-amnesty-by-lawless-executive-order/
David Frum, “Reagan and Bush Offer No Precedent for Obama’s Amnesty Order,” The Atlantic, November 18, 2014. http://www.theatlantic.com/politics/archive/2014/11/the-weak-argument-defending-executive-amnesty/382906/
THE EMANCIPATION PROCLAMATION
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA. A PROCLAMATION.
WHEREAS, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a Proclamation was issued by the President of the United States, containing, among other things, the following, to wit:
“That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever, free; and the Executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of any such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.
“That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be in good faith represented in the Congress of the United States, by members chosen thereto at elections wherein a majority of the qualified voters of such States shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States.”
Now, therefore, I, ABRAHAM LINCOLN, President of the United States, by virtue of the power in me vested as Commander-in-chief of the Army and Navy of the United States, in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof, respectively, are this day in rebellion against the United States, the following, to wit:
Arkansas, Texas, Louisiana, (except the parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James, Ascension, Assumption, Terre Bonne, Lafourche, St. Mary, St. Martin, and Orleans, including the city of New Orleans,) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkeley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth,) and which excepted parts are for the present left precisely as if this Proclamation were not issued.
And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States and parts of States are and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.
And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defense; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.
And I further declare and make known that such persons, of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.
And upon this act, sincerely believed to be an act of justice warranted by the Constitution upon military necessity, I invoke the considerate judgement of mankind and the gracious favor of Almighty God.
In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
Done at the city of Washington this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the United States of America the eighty-seventh.
WILLIAM H. SEWARD, Secretary of State.