Time (Opinion)
By David Kaiser
November 21, 2014
Like Lincoln and Roosevelt before him, Obama occupies the White House in a time of great crisis
Last
night, President Obama announced new steps that will allow about five
million undocumented immigrants to obtain work permits and feel free of
imminent deportation. Given that we now have
an estimated 10–11 million such people within our nation and that many
of them clearly will never leave, this seems a reasonable first step
towards giving them all some kind of legal status. But, because of the
anti-immigration stance of the Republican Party,
which will entirely control Congress starting on Jan. 3, the President
will have to base this step solely on executive power. And even before
the President spoke, various Republicans had accused him of acting like
an emperor or a monarch and warning of anarchy
and violence if he goes through with his plans.
There
are, in fact, substantial legal and historical precedents, including a
recent Supreme Court decision, that suggest that Obama’s planned actions
would be neither unprecedented nor illegal.
This is of course the President’s own position, that no extraordinary
explanation is needed—yet we can also put his plans in the broader
context of emergency presidential powers, which in fact have a rich
history in times of crisis in the United States. It
is not accidental that this issue of Presidential power is arising now,
because it will inevitably arise—as the founders anticipated—any time a
crisis has made it unusually difficult to govern the United States.
Like Abraham Lincoln and Franklin Roosevelt,
Obama occupies the White House in a time of great crisis, and therefore
finds it necessary to take controversial steps.
The
Founding Fathers distrusted executive authority, of course, because
they had fought a revolution in the previous decade against the
arbitrary authority of King George III. But, on the
other hand, they had come to Philadelphia in 1787 because their current
government, the early version of the U.S. system established by the
Articles of Confederation, was so weak that the new nation was sinking
into anarchy. So they created a strong executive
and a much more powerful central government than the Articles of
Confederation had allowed for—and having lived through a revolution,
they also understood that governments simply had to exercise exceptional
powers in times of emergency.
They
made one explicit reference to an emergency power, authorizing the
federal government to suspend the right of habeas corpus—freedom from
arbitrary arrest—”in cases of rebellion or invasion
[when] the public safety may require it.” Nearly 80 years later, when
the southern states had denied the authority of the federal government,
Abraham Lincoln used this provision to lock up southern sympathizers in
the North, and eventually secured the assent
of Congress to this measure. He also used traditional powers of a
government at war—including the confiscation of enemy property—to
emancipate the slaves within the Confederacy in late 1862. With the help
of these measures, the North won the war and the Union
survived—apparently exactly what the Founders had intended.
When
Franklin Roosevelt took the oath of office in the midst of a virtual
economic collapse in March of 1933, he not only declared that the nation
had “nothing to fear but fear itself,” but
also made clear that he would take emergency measures on his own if
Congress did not go along. That spring, the country was treated to a
remarkable movie, Gabriel Over the White House, in which the President
did exactly that—but as it turned out, the Congress
was more than happy to go along with Roosevelt’s initial measures. It
wasn’t until his second term that Congress turned against him; he, like
Obama, used executive authority to find new means of fighting the
Depression. In wartime he also claimed and exercised
new emergency powers in several ways, including interning
Japanese-Americans, this time without a formal suspension of habeas
corpus. In retrospect both a majority of Americans and the courts have
decided that some of these measures, especially the internment,
were unjust and excessive, but the mass of the people accepted them in
the midst of a great war as necessary to save the country, preferring to
make amends later on. Though opponents continually characterized both
Lincoln and FDR as monarchs and dictators
trampling on the Constitution, those are judgments which history, for
the most part, has not endorsed.
As
the late William Strauss and Neil Howe first pointed out about 20 years
ago in their remarkable books, Generations and The Fourth Turning,
these first three great crises in our national
life—the Revolutionary and Constitutional period, the Civil War, and
the Depression and the Second World War—came at regular intervals of
about 80 years. Sure enough, just as they had predicted, the fourth such
great crisis came along in 2001 as a result of
9/11. President Bush immediately secured from Congress the sweeping
authority to wage war almost anywhere, and claimed emergency powers to
detain suspected terrorists at Guantanamo. (Some of those powers the
Supreme Court eventually refused to recognize.)
The war against terror was, however, only one aspect of this crisis.
The other is the splintering of the nation, once again, into two camps
with largely irreconcilable world views, a split that has paralyzed our
government to an extent literally never before
seen for such a long period. Immigration is only one of several
problems—including climate change, inequality and employment—that the
government has not been able to address by traditional means because the
Republican Party has refused to accept anything President
Obama wants to do.
The
Founders evidently understood that when the survival of the state is
threatened, emergency measures are called for. We are not yet so
threatened as we were in the three earlier crises,
but our government is effectively paralyzed. Under the circumstances it
seems to me that the President has both a right and a duty to use
whatever authority he can find to solve pressing national problems.
Congressional obstructionism does not relieve him
of his own responsibilities to the electorate.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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