The Emancipation Proclamation

The Emancipation Proclamation

I have to admit that it was tempting, as a “left-leaning” law student 150 years later, to staunchly defend the constitutionality of Emancipation Proclamation. The desire to defend the moral precepts embodied in this document clouded my judgment until I reread a particularly relevant part of Justice Jackson’s Concurrence in Youngstown. As Justice Jackson explained, “The opinion of judges…often suffer[s] the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies…and [to] lose sight of enduring consequences upon the balanced power structure of our Republic.” As a result, I realigned my focus to the four corners of the Constitution itself, and found that I could not defend President Lincoln’s issuance of the Emancipation Proclamation as legitimately within the realm of his Executive powers. In invalidating state laws and executing far-reaching decree, all without the authorization of Congress, I believe Lincoln overstepped the bounds of the powers allocated to him by Article II and his role as Commander-in-Chief.

The war powers of the Executive (as both President and Commander-in-Chief) have been the subject of heated debate since the inception of the nation, particularly when the unique situation of war arises. Though we desire an Executive that has the power to take swift and decisive action when our nation is in peril, how far beyond the enumerated powers of Article II ought he be able to go? At what point does the Executive cross the line from exercising the legitimate authority granted to him as virtue of Commander-in-Chief, to usurping the constitutionally-protected role of Congress? The question before us today is whether that Lincoln crossed this line on January 1, 1863, with the issuance of the Emancipation Proclamation. I believe he did.

First, we must look at Lincoln’s justifications for the Proclamation. Lincoln relied wholly upon two principles when later justifying the Proclamation—that slaves were property, and that his powers as Commander-in-Chief included the power to take property in times of war. This justification is similar to one given years later by President Truman when he seized the steel mills during the Korean War. Thus, as in Youngstown, the narrow issue before us, is whether the Executive, even when acting in the aggregate of his powers (both as President and Commander-in-Chief), can exercise law-making power absent Congressional approval, in order to preserve or protect national interests? As held in Youngstown, the answer is no.

First, war does not justify the President’s blanket usurpation of Congresses power to make and repeal laws. As Justice Jackson explains in Youngstown, the President’s powers are not fixed (particularly in times of war), but “fluctuate depending upon their disjunction or conjunction with those of Congress.” In brief, Justice Jackson explains that there are three categories in which the President’s act may fall. First, when he acts pursuant to an express or implied authorization of Congress, his authority is at its maximum. Second, when he acts absent Congressional approval, he can act only reliant to his own sphere of power. When the President is not acting against Congress’s will, nor with their blessing, it is possible he is acting within the scope of their concurrent authority. In this “zone of twilight” where the “distribution is uncertain,” the constitutionality of the President’s act is most “likely to depend on the imperatives of events.” Third and finally, where the President’s act is wholly incompatible with either the “expressed or implied will of Congress, his power is at its lowest ebb.” In this category, he is relegated to his own constitutional authority minus the authority of Congress in this arena.

Up until this point, the regulation of slavery was mainly left to state legislatures. Though the United States Congress not ignored the issue of slavery, substantively, slavery was subject to state laws and regulations. Congress, through the passage of the Fugitive Slave Clause and regarding the expansion of slavery in the New Territories, had legislated in relatively tempered ways regarding the institution. In order to abolish the institution of slavery entirely, Congress would have had to be willing to invalidate a series of state laws that had largely been respected up to that point. In fact, some question whether this power was even within the rightful hands of Congress. As Benjamin Curtis has stated, “It has never been doubted that the power to abolish slavery within the States was not delegated to the United States by the Constitution, but was reserved to the States.” If following this premise, Lincoln’s issuance of the Proclamation was not just an infringement of Congress’ rightful authority, but instead acting on the basis of a legislative authority that Congress itself did not even rightfully possess. But, even if Congress did have the power to do so (which believed it Lincoln did), it would have been an unprecedented use of the power, and undoubtedly subject to scrutiny. Either way that you look at it, this at seems to fall best into the Justice Jackson’s third category, where Presidential power is at its “lowest ebb.”

Now we must look at the authority that the President claimed to form the basis of his act—the authority inherent in Commander-in-Chief, to take actions to “best subdue the enemy.” Some may counter Curtis’ argument by claiming that the President (as Commander-in-Chief) has “extra-legislative” powers in times of necessity during war. Undoubtedly, the President has the power to command the armed forces and to take those actions necessary to preserve the existence of the Union, but does this does not include the power to legislate permanent law. Though the implied authority granted to execute and effectuate the declarations of war, this implies a power to act, not a power to prescribe rules for future action.
The powers to make the law and enforce the law were purposely separated between Congress and the Executive in order to prevent too much accumulation of power in one branch. If Lincoln had the right to make and effectuate such a broad-scale law that may have been moral in cause, yet not necessary, the Executive branch essentially had the power usurp the role of Congress during war. This proposition has been explicitly denounced by the Court. In Ex parte Merryman, the Court held that neither emergency nor any other circumstance (such as adjournment of Congress), gave Lincoln the power to suspend the writ of habeas corpus because the power to declare an emergency is exclusively a legislative power. In Ex parte Milligan, the Court held that Lincoln’s authorization of military tribunals in states that had not seceded was unconstitutional because Congress alone had power to “authorize trials for crimes.” Justice Davis rebuked Lincoln’s disregard of the separation of powers, writing in the Majority opinion that, “The Constitution of the United States is a law for rules and people, equally of war and in peace, and covers with the shield of its protection of classes of men, at all times, and in all circumstances.” In both of these cases the Court was clear that the Executive was not immune to constitutional restrictions merely because the country was in war. Even in the face of compelling justification, the Court refused to allow the President’s role as Commander-in-Chief to act as a trump card to the bounds imposed by the Constitution.

Most interestingly, the best arguments against Lincoln’s particular justifications for the Emancipation Proclamation came from Lincoln himself, just a few years earlier. In a letter written to Senator Orville Browning, Lincoln wrote that: General Fremont’s proclamation , as to confiscation of property, and liberation of slaves, is purely political, and not within the range of military law, or necessity. If a commanding General finds a necessity to seize the farm of a private owner…he has the right to do so, and to so hold it as long as the necessity last. But to say the farm shall now longer belong to the owner [forever]…is purely political. And the same is true of slaves. If the General needs them, he can seize them, and use them; but when the need is past, it is not for him to fix their permanent condition.

Lincoln’s own words here serve to contradict his subsequent justification for the Proclamation. First, Lincoln explicitly differentiates between a political (or military) strategy and necessity. Second, Lincoln argues that even a seizure of private property would be justifiable under the laws of necessity, it must only be a temporary deprivation to be justified. Yet just two years later, Lincoln issued a proclamation that permanently freed the slaves in confederate states, that was premised not on necessity, but on military strategy. In an even more poignant summary of the issue, Lincoln aptly stated in his letter, “I do not say Congress might not with propriety pass a law on the point, just as General Fremont proclaimed. I do not say I might not, as a member of Congress, vote for it. What I object to, is, that I as President, shall expressly or impliedly seize and exercise the permanent legislative functions of government.”

In summary, by issuing the Emancipation Proclamation as an executive order, Lincoln first invalidated a series of state laws, then made and executed a new law in their stead. Lincoln did not ask for Congressional approval, he did not claim it was of dire necessity to save the Union, and he did not limit his actions to the time the timeframe of war. This amount of authority, even under the light most deferential to the Commander-in-Chief, is far greater than the text of the Constitution can be read to allow. Allowing the President to circumvent any limitation of his power during times of war fundamentally imbalances the scale between Congress and the Executive, and is rife with dangers. We must remember that “The President is the commander-in-chief…not only by force of the Constitution, but under and subject to the Constitution.”
The ultimate effect of an overly powerful Executive, other than the possibility of tyranny or despotism (warned of by Justice Davis in Mulligan), is invalidating the very document the armies were fighting to protect. In Ex Parte Merryman, Chief Justice Taney opined, “The government of the United States is one of delegated and limited powers; it derives its existence and authority altogether from the Constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted.” In effect, though we do not wish to straitjacket the Executive in times of war, we must confine him to the powers assigned to him in in Article II, regardless how just a cause the war may be. As Benjamin Curtis eloquently summarized, “The war in which we are engaged is a just and necessary war…But with what sense of right can we subdue them by arms to obey the Constitution as the supreme law of their part of the land, if we have ceased to obey it?”