The executive order Lincoln issued by Lincoln was the first of two, which we now know as the Emancipation Proclamation. Most schools focus on the second one, issued on January 1st, 1863. However, I think the first one, issued a hundred days before that, provides the most insightful view of how Lincoln managed his role as constitutional steward.
The preliminary proclamation basically states:
- As Commander-in-Chief I am saying the war is being fought to restore the Constitutional relationship between states.
- At some point in the future, I will go to Congress and recommend actions to practically deal with the issue of slavery.
- 100 days from now, Union forces under my command will treat slaves as free men in all states that remain in rebellion.
- 100 days from now I will designate which states are in rebellion.
- If you don't want to get on that list, send a representative back to Congress in the next 100 days.
- My authority to take this action flows from the Second Confiscation Act previously enacted by Congress.
- When the dust settles and we have restored the proper relations, I will recommend all loyal citizens be compensated for their losses including the loss of slaves.
This course of action did not arise overnight. It had been suggested and debated in detail within the administration for months. Antietam was the first opportunity to put this out in public. The 100-day window was a masterful bit of political theater.
Notice what is missing.
Lincoln did not take a position on slavery. He left that to Congress. Lincoln did not believe people who were loyal citizens should be stripped of their property without compensation. Heleft the details to Congress. Lincoln did not claim any special powers. He pointed to Congress for the enabling legislation.
I think it safe to assume Lincoln, the lawyer, knew he needed a solution capable of enduring inevitable challenges. If he claimed extraordinary powers or took extra-Constitutional liberties, any actions taken underthat authority would be legitimately challenged in the future and probably overturned.
This proclamation differs from his decision to suspend the Constitutional right of habeas corpus. That was never intended to be a permanent and enduring state of affairs. He knew it would take time to challenge the constitutionality of that declaration, and even longer to overturn it. I doubt he planned on using it that long. As it turned out, the war was over by the time he was overruled.
Both Lincoln and Obama look to Congress to solve the enduring problems of this republic. That makes sense. Every executive knows any decision undertaken unilaterally can easily be reversed by a successor.
This the primary reason I rail against the spineless senators who are led by Harry the Hapless. If you start off boasting, "I don't work for [the president]" before the guy even shows up to his first day at work, then no one should be surprised when the president who said he wanted a health care bill on his desk to sign by the end of summer finds himself at the next State of the Union holding his johnson (and I don't mean LBJ) in his hand.
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
