The current president's hero tried to abide by the Constitution and enlist Congress's support.
By Nicholas Quinn Rosenkranz
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.
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