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Saturday, August 17, 2013

Obama vs Lincoln

The Obama administration announced last month via blog post that the president was unilaterally suspending ObamaCare's employer mandate—notwithstanding the clear command of the law. President Obama's comments about it on Aug. 9—claiming that "the normal thing [he] would prefer to do" is seek a "change to the law"—then added insult to constitutional injury. It also offers a sharp contrast with a different president who also suspended the law.
On April 27, 1861, President Lincoln unilaterally authorized his commanding general to suspend the writ of habeas corpus so that he could detain dangerous rebels in the early days of the Civil War. Lincoln's order was constitutionally questionable. The Constitution provides that "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
A rebellion was in progress, so suspension was permissible. But the Constitution doesn't specify who can suspend the writ in such circumstances. Since the Suspension Clause appears in Article I of the Constitution, which is predominantly about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.
Lincoln's order was legally dubious, but what he did next showed remarkable constitutional rectitude. On July 4, 1861, he delivered a solemn message to Congress, in which he did everything possible to square his action with the Constitution. In this message, he set forth the best possible constitutional arguments that he had unilateral power to suspend the writ. These arguments may have been wrong, but they were serious, and they were presented seriously, in good faith.


Lincoln also made a powerful argument about the necessity of his action. Even if he was wrong, and only Congress had the power to suspend the writ, surely the circumstances had to be considered: Congress was in recess and the South was in open rebellion. "The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the states," Lincoln said to Congress.
Should Lincoln have refrained from suspending habeas, if doing so meant that the republic would fall? As he put it: "[A]re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"
Lincoln also invited Congress to ratify his actions: "Whether there shall be any legislation upon the subject, and, if any, what, is submitted entirely to the better judgment of Congress." On Aug, 6, 1861, Congress did indeed retroactively ratify "all the acts, proclamations, and orders of the President . . . respecting the army and navy of the United States." And later, on March 3, 1863, Congress expressly authorized the president to suspend the writ.
Scholars have debated whether Lincoln exceeded his power by suspending the writ and whether Congress's retroactive ratification cured any constitutional infirmity. Whatever one's answer, this is a case of a president—himself a constitutional lawyer—trying, under impossible circumstances, to be as faithful to the Constitution as possible.
Contrast all of this with President Obama's announcement that he is unilaterally suspending part of the Affordable Care Act. Like Lincoln, Mr. Obama is a constitutional lawyer. And like Lincoln's action, Mr. Obama's was a unilateral executive suspension of the law. But in every other way, the president's behavior could not have been more different from Lincoln's.
First, Lincoln's action was at least arguably constitutional, while Mr. Obama's is not. The Constitution has a provision for suspending habeas. It has no general provision for executive suspension of laws. English kings used to suspend laws, but the Framers rejected that practice: The president "shall take Care that the Laws be faithfully executed."
Second, Lincoln volunteered an articulate constitutional defense of his action. Mr. Obama seemed annoyed when the New York Times dared to ask him the constitutional question. When the reporter asked whether he had consulted with lawyers about the legality of the mandate's delay, he declined to answer.
As for Republican congressmen who had the temerity to question his authority, Mr. Obama said only: "I'm not concerned about their opinions—very few of them, by the way, are lawyers, much less constitutional lawyers." Mr. Obama made no mention of Iowa Sen. Tom Harkin—a Democrat, a lawyer and one of the authors of ObamaCare—who said: "This was the law. How can they change the law?"
Third, Lincoln offered a brilliant and compelling argument about the necessity of his action, given that the republic was in imminent danger. Mr. Obama's official version of the constitutional-necessity argument was nothing more than a breezy blog post attributed to an assistant secretary for tax policy. The title? "Continuing to Implement the ACA in a Careful, Thoughtful Manner."
Fourth, and most strikingly, Lincoln promptly looked to Congress to ratify his unilateral action. Congress agreed with Lincoln, and the president welcomed and signed new legislation. President Obama says only that he wishes he could follow the same course. Last week, he said he would like to "simply call up the Speaker" of the House to request a "change to the law" that would achieve his desired delay.
In fact, as the president knows, he doesn't even need to pick up the phone: On July 17, the House of Representatives passed the Authority for Mandate Delay Act (with 229 Republicans and 35 Democrats voting in favor). This would authorize President Obama's desired suspension of the law, just as Congress ratified Lincoln's suspension of habeas corpus.
But unlike Lincoln, President Obama doesn't welcome this congressional ratification. He has called the House bill that fixes the constitutional problem he created "unnecessary," and he threatened to veto it. Why? Because the House also passed a companion bill that would delay the individual mandate too. For political reasons, the president doesn't want to be in the inconvenient position of signing one bill that would give companies a reprieve from ObamaCare, while vetoing another that would grant individuals the same delay. The Democratic-controlled Senate will quietly kill the House bill and save Mr. Obama the awkwardness of having to veto it.
Faced with military exigencies, Lincoln did everything possible to enlist Congress's support—and thus to follow the Constitution. Mr. Obama, faced with mere political and bureaucratic inconveniences, spurned Congress's support and flouted the Constitution.

Mr. Rosenkranz is a professor of law at Georgetown and a senior fellow in constitutional studies at the Cato Institute. 


  1. Once, when asked why he was having difficulty getting legislation passed Mr. Obama replied “unfortunately we have this messy democracy”.

    He said it was “unfortunate”. I have no reason to doubt that he believes it is unfortunate. I will not join him in that conviction.

    While simply articulating the obvious Mr. Rosenkranz’s comments are well stated and striking in written form.

  2. I would say that comparing the suspension of the writ of habeus corpus with what, as far as I can tell,is an administrative matter (giving companies another year to come into compliance) seems to me to be like comparing murder to speeding. When I read about both suspensions I understood the clear need for both, and though I am disappointed that the employer mandate is being put off another year, I cannot say that I am surprised based on what I had been reading about the practical problems of a 1/1/14 implementation. Either it can be done or it can't. And apparently it can't. Not surprising given the cost cutting taking place, and specifically, personnel cuts.

    As for the constitutional hand wringing, I give those who spend their time worrying about the trampling of the constitution some slack because I know that when one sees everything through the filter of a particular concern, every action can seem to be related. But having seen every President in my lifetime accused of ignoring the constitution, trampling on the constitution, destroying the constitution, etc., etc., etc., it really has become like the boy who cried wolf. If a person only read the articles that mention the unconstitutional acts of the presidents one would be left with the strong feeling that we Americans only elect Presidents whose strongest desire is to wad the constitution up, throw it in our faces and declare themselves the Emperor. But that simply has not been the case. We elected FDR 4 times amid constant accusations of constitutional malfeasance but he died without ever declaring himself king. We got a brand new President and a constitution no worse for wear from the purported attacks by FDR.

    As for Obama's statement regarding a messy democracy, it seemed clear to me when he said it that he was referring to the unfortunate messiness associated with having a democracy, not that our having a democracy was unfortunate. I have heard folks from both sides of the aisle make similar statements. The messiness of democracy is undeniable and that messiness surely has been a source of frustration for anyone who has ever been elected to office with the idea that they were going to "get stuff done".

    While I have heard and read that Obama is nothing but a despot who seeks king-like status I have not seen that in his actions. In fact he has not made one decision, that I am aware if, that I didn't understand as a problem solving move. I wish I could say that about every President for which I have voted.


    1. I agree Bruce that Obama (who I voted for too) is not trying to make himself king. But the article did not say that he was which makes this a straw man.

      The question here is whether the president can take a law that has no provision for delaying sections of it and just implement those parts of it that he wants to and not implement others. If he can do that, then what are the limitations of his office? I don't think using a label like “problem solving” is sufficient justification.

      The “Dream Act” failed to pass Congress, but Obama revised the immigration law and effectively implemented the Dream Act anyway. That was problem solving, the problem being that Congress wouldn’t pass the law that he wanted.

      I don't see this as being in the Nixon category although Nixon was just trying to solve the problem of winning the next election.

      What problem was being solved when the IRS went after the Tea Party?

    2. If the article is not saying that Obama is trying to make himself king (or kingish), by bypassing the constitution and congress, then what is the point of the article? That Lincoln bypassed the constitution better than Obama? Lincoln was nicer and more considerate about it? What I get out of this article is that the author's concern is that a President, in particular this President, who ignores the constitution in his actions, for any reason, is taking on powers beyond those granted in the constitution. And what is the complaint if it's not that a President is setting him or her self up as a sole "decider" of what laws to follow and what laws not to follow, much like a king? You said it yourself "If he can do that, then what are the limitations of his office?" And if the answer to your question is "there is no limit", which I infer is the underlying fear, then what would that make the President if not a king/dictator/emperor/sole decider, etc.? If that is the case then the point of the article is to imply that Obama is taking on king-like powers. What other point could there be? The article does not once criticize Obama's decision on any grounds but constitutional. That he overreached to take on powers that the constitution does not grant. Maybe the word king is too imprecise but I think the point is made realistically. No straw man, just addressing my interpretation of what the bottom line of the article is, much the same as your bottom line, or as you called it "the question".

      I think problem-solving can be an acceptable justification when the problem is clear and the need for a solution is great, yet nowhere in sight. And I know that you do not really think that the only problem that implementing the Dream Act sought to solve was that congress wouldn't pass the law that Obama wanted. The problem was much greater than that and there was no real solution that was going to pass congress in spite of the fact that the problem has been with us for decades and continues to expand quickly. Obama's problem may have been congress, but the nation's problem, which he sought to solve, at least to the extent that he could, was immigration and all of the associated negative consequences of doing nothing.

      Nixon's problem with getting re-elected was not the nation's problem. I see the difference as obvious. I can elaborate if you wish.

      And I'm glad you brought up the "IRS went after the Tea Party". That subject is too large to address here and now. But I'll try to post something on it when I have more time. It's a good discussion with all kinds of shades of gray...or grey.

    3. I cannot remember who, but I remember hearing a quote by one of the framers of the constitution saying that difficulty in passing legislation was intentionally designed into the constitution.

      I would assume that Mr. Obama knew before he was elected that democracy was messy, so stop lamenting and work with the system. Two of the most partisan and polarizing presidents in my lifetime were Johnson and Reagan. They were also two of the most legislatively successful president in my lifetime because they understood that if you want to “get stuff done” you have to work with congress, and both of them did. Obama gives me the impression that he feels congress is a nuisance that he should not have to put up with.

    4. From your last comment: “You said it yourself "If he can do that, then what are the limitations of his office?" And if the answer to your question is "there is no limit", which I infer is the underlying fear, then what would that make the President if not a king/dictator/emperor/sole decider, etc.? If that is the case then the point of the article is to imply that Obama is taking on king-like powers.”

      I would agree with you that if the answer is “there is no limit” then you would be supporting king-like powers. I never imagined that that would be your answer. I was seriously trying to see what limits you would put on Executive power, because it seems to me that “problem-solving” is a pretty loose category. For example, who decides what “problems” the president may solve outside the law?

      So what is your answer to that question?

    5. Wayne, I am sorry. I thought your question was rhetorical, kind of like "just how stupid do you think I am?" Or "how many times do I have to tell you?" Questions designed to emphasize the ridiculousness of the extreme.

      You are asking questions that could be argued ad infinitum, but I'll dip my toe in and see how it goes. Your first question was "if he can do that, then what are the limitations of his office?" And "that" was cherry picking parts of a law to enforce, or implement, and the parts not to enforce/implement. In the immediate case of "that" (the employer mandate) I would say that if the implementation at a certain point in time is deemed to be simply unworkable, then the Executive branch, as the sort of Chief Administrative Officer, should back away from that implementation date and reassess the situation. It's just a practical response. Remember, the law including that date was passed literally years ago. In that time the process of gearing up for compliance has been going on and the learning curve has been great for all parties concerned. But, you say that for the executive branch to react to the current realities of the situation (i.e. push the compliance date forward) is outside of the law because the constitution does not give the Executive Branch the power to choose which laws to enforce. I would argue that not only is this inside of the law but it happens all the time (even though it doesn't get written up in the news all of the time). Passing laws is one thing but administering those laws is another thing altogether.

      In my profession we deal with tax laws. But, the tax laws are not always that clear and rarely do they contain every provision to meet every circumstance that shall arise. So we have the Treasury (part of the Executive Branch) who fills that gap and writes Regulations that basically set forth "what happens if" types of questions. Sometimes the Treasury announces that the date they were going to start enforcing compliance with a certain piece of legislation, or a certain part of that legislation, has now been changed to a different date to adjust for the unforeseen realities of the circumstances. To be better prepared to administer the law and for the taxpayers to get prepared to comply with the law. This has been accepted long before I showed up and I showed up a long time ago. Every once in awhile I hear someone mumbling about an unelected Treasury making law. And in fact they do, in effect, write law. Sometimes the law itself includes a sentence that requires Treasury to write Regulations to make the law clear and practical. One can challenge the Regulations and that certainly is done successfully on occassion. But until a court strikes them down the Regulations carry the full weight of the law.

      You ask me what "problems" (your quotes)the President may solve outside of the law. I would say that he, like myself, should never do anything outside of the law. However, my argument is that the President should do everything that we elected him to do and work to solve the problems we elected him to solve. And I would prefer it that he do it within the law. But if the circumstance arises where he has to choose between doing his job of solving the nations problems he was elected to solve and staying strictly inside of the law, then I say he should do what he can do to stay as close to the law as possible, solve the problem, and let the chips fall where they may. There is enough loyal opposition in this country that, should he commit acts that can clearly be proven to be illegal, then impeachment would certainly follow rather quickly, I would imagine, with all of the gusto of the 90s impeachment of Bill Clinton, with special prosecutors, sordid speculation, and the whole circus.

    6. Part II to include my excess wordage.

      The political process has all kinds of career destroying pitfalls for a President who colors too far out of the lines. But, there is an ebb and flow to it that can't be etched in concrete. A person who is dying of thirst (problem) doesn't care if the water they drink (solution) is in a recyclable container or what the law is concerning that container, nor, I would argue, should they.


    7. I like that expression, "a President who colors too far out of the lines".

      If I understand your position it is that you would rather the president follow the law but if it is a really, really important issue, then you're OK with it if he doesn't.

      I think that our main difference is that perhaps I worry more about the growing power of the Presidency. I agree with those who think that the greatest structural danger to the Republic is the ever growing power of the executive branch.

    8. Well...ok...if my position were merely that simple I could have just said what you said and saved myself a whole pot load of time. Look, I think that your concerns are valid. I think that there are more illustrative, and therefore better, examples of the signs of an executive branch that is growing too powerful, if that indeed is the case. I think that the Patriot Act and its evolution is a great example. I like it, as an example, because it covers more than one administration and allows for a history that can be examined and quantified. One can actually point to the benefits, if any, and the consequences. But clearly there is danger to the Republic in not holding the executive branch accountable for its actions. I get that. But that is not my only concern, and I believe that we should not keep our eye on that ball to the exclusion of others that may be even more pressing with regard to the survival of the Republic. We should not be one dimensional in our concerns (not that I'm saying you are because I don't know. You have discussed your constitutional concerns enough that I know that they are great). At the risk of mixing my metaphors, while we're getting out of the way of an oncoming car we could easily step right into the path of an oncoming bus and, having barely avoided that, step right into an open manhole. Just ask Wylie Coyote how fun that is.


    9. I agree that either one of us could find ourselves down the manhole. An example of what troubles me about the administration is that I saw Secretary Sebelius explaining that it was ridiculous for the Rs to be talking about defunding the ACA because it wasn't just something on the table, it was THE LAW she put a lot of emphasis on that. But when it is inconvenient we treat THE LAW as if it was a suggestion. If congress had wanted to give him flexibility about implementation, they could have done so. The difficulties are not a surprise.

      PS I too am becoming ever more worried about the Patriot Act.

  3. Thanks Bruce. While I don't know you, I think that you are an analytical thinker and I appreciate how well you keep the Conservatives (opps, centrists) on their toes.


    1. One of the least attractive parts of modern discussion is that if you're not on my side, then you must be extremely opposite me.

    2. Wayne, I don't always agree with you but I still think that we're not that far apart on most of the important issues.

    3. KW I don't know you either but I can honestly say, if that is indeed your picture, that I like your beard and I covet your full head of hair. Congrats!


    4. Yeah, y'all would like each other.