Nicholas Quinn Rosenkranz teaches constitutional law and federal jurisdiction, and he writes articles for the Harvard Law Review and the Stanford Law Review among others. This contribution is from the Wall Street Journal.
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.”
