Comparing a Hypothetical Obama with an Actual Lincoln

by Dave Schuler on August 7, 2014

I think there’s some merit in Charles Lane’s comparison of a hypothetical executive order from President Obama

offering up to 5 million undocumented parents of U.S. citizens and others the same two-year renewable reprieves from deportation plus work permits that Obama already ordered for undocumented residents who arrived as children

with Abraham Lincoln’s Emancipation Proclamation. It would simultaneously be an act of mercy and politically expedient; he would be exceeding his powers and, consequently, courting impeachment.

However, the analogy fails if the actual circumstances of each are taken into account. There is no comparison between illegal economic migrants and slaves. The economic migrants are free to return to their countries of origin, mostly Mexico. Additionally, the analogy fails to take into account the Emancipation Proclamation’s function as a tactic to end the American Civil War.

It would be a much closer analogy if, rather than a civil war, the Emancipation Proclamation had been issued to quell a slave rebellion. What do you think would have happened if there had been no civil war and President Lincoln had issued the Emancipation Proclamation during a slave rebellion?

{ 5 comments… read them below or add one }

PD Shaw August 7, 2014 at 9:39 am

“What do you think would have happened if there had been no civil war and President Lincoln had issued the Emancipation Proclamation during a slave rebellion?”

Lincoln would not have issued the Emancipation Proclamation. Indeed, he was not opposed to a Constitutional amendment to clarify the limits of federal authority in this regard.

Charles Lane repeats what I think are the most common misunderstandings surroundingLincoln. One is that Lincoln was a proponent of a strong executive. He was a Whig, which meant that he believed the President should be subservient to the legislature. Obama acts more like Lincoln when he takes a hands-off approach to domestic legislation and lets Congress decide what the law should be.

The other is that Lincoln freed the slaves with the Proclamation. The central drama of the Spielberg movie is a political one, gaining a supermajority of legislative votes (or absences) from diverse legislators to end slavery. It is these efforts to participate in legislation, perhaps even by practicing retail politics, that were unique for Lincoln, but not so unique today. What is Obama willing to give to Republicans? I doubt very much; the issue is not that important to him.

steve August 7, 2014 at 1:15 pm

PD- What should he give the Republicans? What would they take? Anyway, in terms of scale, this is only a bit bigger than the 4 million given amnesty by Reagan. Back then Congress could work with itself and the POTUS.

Steve

PD Shaw August 7, 2014 at 1:28 pm

@steve, if Obama is to play the role of Lincoln, it is not for Obama to decide what he should give the Republicans, Obama is supposed to ask Republicans what they want that he can give them.

Dave Schuler August 7, 2014 at 1:46 pm

Anyway, in terms of scale, this is only a bit bigger than the 4 million given amnesty by Reagan. Back then Congress could work with itself and the POTUS.

I think you should take path dependency into account. Having once given amnesty, future amnesties become more difficult rather than easier.

PD Shaw August 7, 2014 at 2:50 pm

One other historical note, the Proclamation was preceded by the Second Confiscation Act passed by Congress, which freed rebel-owned slaves within union lines. Lincoln had problems with the law and almost vetoed it, but signed it and sent the veto message to Congress as a sort of signing statement of his concerns.

The preliminary Emancipation Proclamation quotes at length from the Second Confiscation Act, and at the time, was perceived as Lincoln’s implementation of the Second Confiscation Act given the contemporaneous understanding that Lincoln had concerns in how it would be implemented. His implementation went beyond the language and clearly implicates war powers that he believed were his alone to exercise, but its not quite true that he was acting solely on powers as commander-in-chief, and Obama does not have comparable Congressional acts for support.

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