Those who do not know history are condemned to write stupid Facebook memes. One of the most popular since President Obama issued an executive order blocking deportations for 5 million illegal immigrants has been a photo of the president appended with a little speech bubble: “You know what else was an executive order that bypassed Congress and affected millions? The Emancipation Proclamation!”
In fact, the Emancipation Proclamation hardly affected anybody at all. Though politicians — and, much more depressingly, history teachers — glibly refer to it as the moment when Abraham Lincoln freed the slaves, it was really just a threat intended to terrify the Confederacy with the possibility of a slave revolt within its borders.
The proclamation specifically excluded Missouri, Kentucky, Maryland or Delaware, the slave states that had stayed in the Union. It also didn’t cover slaves in areas of the South that Lincoln’s troops had already conquered, including most of Tennessee and Louisiana (including New Orleans) and a big chunk of Virginia.
Worse yet, the Emancipation Proclamation allowed the Confederate states a loophole: If they gave up the war and returned to the Union within three months, it wouldn’t apply to them and slaves there would still be the property of their masters. “Where he has no power Mr. Lincoln will set the Negroes free,” the London Times scathingly observed. “Where he retains power he will consider them as slaves.”
That so many Americans have so little knowledge about the Civil War and the end of slavery, a pivotal point in their nation’s history that continues to color politics and race relations to this day, is sad. But even more distressing is their seeming belief that presidents should behave like kings. A pox on all that stuff about checks and balances and the rule of law! Speak, your highness, and it will be made so.
President Obama is not, of course, the first to issue executive orders; they go back to the days of George Washington, and presidents of both parties have made use of them. By no means are they all noxious to the rule of law.
Often they are instructions to the president’s subordinates to carry out legitimate executive-branch policy measures. President Truman, as commander in chief, surely had the authority to integrate the armed forces, as he did with an executive order. Other orders are harmless expressions of presidential wishes; no congressman had a meltdown over President Washington’s creation of Thanksgiving Day.
But executive orders also offer a tantalizing temptation to presidents who don’t want to be bothered wrestling with the annoying constitutional powers of the judicial and legislative branches. If Congress won’t change immigration law, dadgum it, I’ll do it for them! No matter that the members of Congress were also elected; no matter that if we have gridlock in Washington D.C., it’s because voters wanted it that way.
Presidents lust for power the way the way Kardashians lust for TV cameras, so it’s hardly surprising that President Obama is humming along with the siren song of executive orders. But his liberal supporters might want to think twice. The further the executive-order genie gets out of the bottle, the more it can be used to destroy progressive ideals. Consider some other presidential orders that bypassed Congress:
▪ If the Emancipation Proclamation was largely a fraud, another of President Lincoln’s Civil War executive orders was all too genuine: He suspended the constitutional right of habeas corpus, allowing the army to jail anti-war dissidents, try them before military tribunals, and even sentence them to hang, without appeal to civilian courts.
▪ Franklin Roosevelt used an executive order to confine anybody of Japanese ancestry to internment camps during World War II. As many as 120,000 people, the vast majority of them U.S. citizens, were locked away for three years without a speck of evidence that they’d done anything wrong.
▪ In 1952, President Truman, angered by the plans of 10 steelworker unions for a nationwide strike, seized the entire industry. The unions, fearful of what might happen if they struck against the government rather than private industry, promptly canceled their walkout. When the Supreme Court declared that Truman’s takeover was illegal, the unions struck within hours.
▪ The NSA snooping revealed by Edward Snowden got its start after George W. Bush’s 2002 executive order permitted warrantless taps on telephone calls made in the United States.
“Stroke of the pen. Law of the land. Kinda cool,” said one of Bill Clinton’s aides after he signed a flurry of executive orders in 1998. Will it still be cool if it’s President Palin’s pen?