Speaking to Fox News’s Greta Van Susteren after the president’s State of the Union address Tuesday night, House minority leader Nancy Pelosi attempted to justify his unilateral action raising the minimum wage of federal contractors; she acknowledged that it would be “much better for Congress to act and for it to be the law of the land more 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 that. Congress, “in fact,” did not abolish slavery. The Thirteenth Amendment to the Constitution did.
No less confused about our history is Pelosi’s assistant, Assistant Democratic Leader Representative James Clyburn (D, S.C.), who told Huffington Post that he feels “very strongly” that the president should take executive action to prohibit discrimination against lesbians, gays, bisexuals, and transsexuals, 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 Representative Clyburn would not be 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, it purported to free slaves only where the Union lacked the power to do so.
The fact that the Emancipation Proclamation was not a necessary precursor to the freedom of Representative Clyburn’s ancestors or his career is not, however, the primary reason that it is a highly problematic precedent for the sorts of legislation bypasses being pursued by President Obama. Unless, that is, 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 Department official ) John Yoo pointed out last year on the Proclamation’s 150th anniversary, Lincoln “was responding to a crisis that threatened the very life of the nation.” His constitutional justification for the Emancipation Proclamation was that it was “a fit and necessary war measure for suppressing” a rebellion against the United States. According to Professor Yoo, “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 the recalcitrant citizens who disagree with him as enemies, and so maybe the Emancipation Proclamation is a fitting model for him after all.
— John S. Rosenberg, a lapsed historian, blogs at www.discriminations.us.