Immigration: Is the Emancipation Proclamation a Precedent?

I’m not going to comment on President Obama’s decision about illegal immigration.  Enough people have commented that I don’t need to.  Plus I’d be late.  I would, however, like to comment on the comments; i.e., I would like to comment on one of the examples that some people have used as a precedent for President Obama’s action: The Emancipation Proclamation.

Let me quote from an article by Bruce Ackerman, a professor at Yale Law School:

“Before Lincoln issued his pronouncement in September 1862, congressional majorities had expressly affirmed that the war effort only aimed ‘to preserve the Union’ without ‘overthrowing … established institutions’ in the rebel states.  The proclamation was an act of executive unilateralism, and as Obama has done in his order, Lincoln limited its scope in recognition of this fact.  As a result, both proclamations serve only to initiate, rather than preempt, further democratic debate and decision. …

Particulars in Obama's proclamation may well be changed by Americans over time.  But like Lincoln's, its provisional and limited character will have a democracy-forcing effect — spurring officials and citizens to more actively engage in a constitutional dialogue.”

First, I am not sure what he is talking about.  “[I]nitiate … further democratic debate”; “democracy-forcing effect”.  Huh?  The President’s decision wasn’t about furthering debate or democracy-forcing.  It was about doing something that he couldn’t get Congress to agree to.

But beyond that, the more important thing is that what President Obama did can’t be compared to the Emancipation Proclamation.  People talk about polarization, and how divided we are, but we aren’t at war.  We haven’t killed tens of thousands of our countrymen (as at the time of the Emancipation Proclamation).  We don’t have eleven (or thirteen) states trying to start a country.

As Professor Ackerman says, President Lincoln was acting out of “military necessity” in a civil war.  People in favor of comprehensive immigration reform (as opposed to piece-by-piece legislation) may be frustrated, but that doesn’t count as military necessity.  Measures Abraham Lincoln took as a military necessity to “preserve, protect and defend the Constitution of the United States” are not precedents for action in political disputes between people who don’t like to, or don’t want to, negotiate with each other.