News Flash: The Obama Administration has rediscovered Lincoln's understanding of the limits to the reach of the courts, without apparently knowing that it is Lincoln's understanding that the White House lawyers have rediscovered. And all the while the Republicans for years have professed no longer to grasp that understanding. A panel of the DC Circuit of Appeals, two weeks ago, held invalid the so-called "Recess" appointments that President Obama had made to the National Labor Relations Board (NLRB). The three appointees with those recess appointments formed a majority of the board in a decision taken against the Noel Canning Company. And so that decision, voted by members without legal standing, was dissolved. But the NLRB announced that the ruling was confined to the case at hand, Noel Canning v. NLRB. Other companies would be affected by the same ruling, but the NLRB would not respect the reasoning or the principle articulated by the court as it bore on companies that were not parties to the suit. Those companies would have to litigate on their own and invite the courts to issue the same judgment anew in each case.
The President has often invoked Abraham Lincoln, even while he has rejected that "proposition," as Lincoln called it, that formed the moral ground of Lincoln's political mission. For Obama has made it clear that he regards "all men are created equal" as a lofty sentiment, but not a moral truth—not, as Lincoln said, a "truth, applicable to all men and all times." But now when it comes to the political branches countering the courts, the Obama Administration has backed precisely into Lincoln's understanding. Lincoln had led a national movement to counter and overturn the holding of the Supreme Court in the infamous case of Dred Scott. As Russell Hittinger has pointed out, Lincoln could not have put his hand on the Bible and sworn to preserve, protect and defend the Constitution of the United States on March 4, 1861 if he had to take the oath to respect and preserve the Constitution that contained now the "right" that was articulated in the Dred Scott case.
The Court held in the case of Dred Scott that black people could not have the standing of "citizens" to sue in federal courts, and that people could not be dispossessed of their constitutional "right" to hold property in slaves when they moved into a Territory of the United States. Lincoln argued that the decision set the ground for the nationalization of slavery, for the logic of this new constitutional right would be applied to the States, as well as the Territories.
In his famous debates with Stephen Douglas, and in his First Inaugural Address, Lincoln set forth an understanding to limit and contain the decision in Dred Scott: He would respect the holding of the Court in regard to the two litigants in the case. If the Court decided that Dred Scott was still a slave, he and his party would not form a "mob" and "decide him to be free." We do not propose that ... we will in any violent way disturb the rights of property thus settled." But he and his party would not be obliged to accept the reasoning of the Court or the principles articulated in the case:
[For w]e nevertheless do oppose that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision. We do not propose to be bound by it as a political rule in that way, because we think it lays the foundation not merely of enlarging and spreading out what we consider an evil, but it lays the foundation for spreading that evil into the States themselves.
Lincoln and the Congress would be free, in the measures coming under their hands, to act on a different principle. He would seek then to narrow the decision to the case at hand, to resist its acceptance as a precedent—and to have that decision "reversed ... and a new judicial rule established." He would go on to warn in his First Inaugural Address that, if that path were not followed, the policy of the government for the nation as a whole could be "fixed" by the Court in the "ordinary litigation" of private parties. A bare majority of the Court could combine with two litigants, perhaps in a collusive suit, and seven men could impose a policy on the rest of the country. Under those conditions, he said, "the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
Early in the Administration that understanding was tested in two cases coming out of Boston. A black student was denied a passport to study in France, and a black inventor was denied a patent. Two branches of the federal government applied the principle in the Dred Scott case to circumstances quite removed from a slave litigating over his freedom: As the agencies reasoned, blacks could not be citizens, and therefore they could not carry American passports or receive a patent under American law. The Lincoln Administration quashed both decisions. The Attorney General, Edward Bates, went on to assert that in the understanding of the new Administration, any black person born free in the United States was indeed a citizen of the United States, anything in the Dred Scot decision notwithstanding.
When the Supreme Judicial Council of Massachusetts in 2003 installed same-sex marriage, some of us urged Governor Romney to take Lincoln's line: that he would accept the outcome of the Goodridge case for the litigants, but that others would have to litigate anew to extract the same judgment. And in the meantime, the offices under the governor would respect the standing laws on marriage. But I recall one notable conservative lawyer in Boston, hearing the argument again for Lincoln's position or, more likely, hearing it for the first time, was aghast at hearing it. If Romney asserted such a position, he said, "he ought to be impeached."
And yet, the irony here is that the Democrats in Congress for years have been applying that same understanding. The U.S. Supreme Court had struck down the "legislative veto" in the Chadha case in 1983 (Immigration and Naturalization Service v. Chadha). With the "legislative veto" administrative agencies were free to take the initiative in acting, while the Congress, or one of its committees, could veto the decision in 60-90 days. As it happened, though, that arrangement was at the heart of a legislative Act much beloved by liberals, the famous War Powers Act of 1973. The Democrats would not concede that there was anything wrong in principle, anything "unconstitutional" about the legislative veto. Without knowing Lincoln's argument or citing it, the Democrats nevertheless followed it: The Chadha case would be narrowed to a decision on immigration, while the principle sounded by the Court on the "legislative veto" would be ignored. In the meantime the Congress would keep enacting the legislative veto in other measures.
The same issue has arisen over the years in relation to cases such as Roe v. Wade. The liberals insist on high respect for this "super-duper precedent" whose meaning is far from settled, even 40 years later. But they confidently move to contain and narrow the decisions they don't find congenial. On the other side, the Republicans keep railing against a judiciary that keeps extending its powers into the fields once reserved to the political branches—or to the military on the field of combat. And yet, when Lincoln's argument is sounded, they treat it as something implausible, unthinkable, and far too audacious to be treated seriously by the sober graduates of respectable schools. But it's the same old story: What Republicans are too timid to assert in public, or even profess to be thinking, the Democrats practice persistently without worrying overly much. Or without understanding what makes Lincoln's understanding so compelling under the logic of the American Constitution. It may be time for the Republicans to awaken from their dogmatic slumber. They can start taking seriously again the Lincolnian understanding that the Democrats keep acting upon and let them know that the game has been joined: If these are the rules, then Roe v. Wade is on the line, along with every other novelty that may spring from the genius of liberal judges.
In the meantime, the decision taken against the Noel Canning Company, in refusing to accept an agreement with a local of the Teamsters Union, has been overturned. The NLRB declares now that it regards the decision of the District Court as mistaken, but that it will respect the outcome of the case, if not the reasoning. And the Chairman of the Board, Mark Gaston Pearce, announced at the same time that the Board "will continue to perform our statutory duties and issue decisions." But if the Board respects the judgment of the Court, why are those three members still there? Their very presence promises to stamp with a legal doubt every other decision in which they participate. Could the argument be that the NLRB will respect that judgment on its members only when it is handed down by the Supreme Court? But it seems to be an open question now as to whether the Administration will risk an appeal to the Supreme Court. And in that event, the refusal to accept the outcome in regard to those appointees would not really reflect Lincoln's understanding in respecting the judgment of the court. It would mark a stroke of contempt for the court and the subversion of the judicial authority.
A dozen years ago some of us were testifying in Congress for "the most modest first step" in legislating on abortion, the so-called "Born-Alive Infants' Protection Act," the bill that would simply protect the life of a child who survived an abortion. One federal judge had been faced, in 1977, with the case of a child who had survived an abortion for 20 days, undergone a surgery, and died. Had there been an obligation to save that child, to treat him as any other patient in a hospital? The answer tendered by Judge Clement Haynsworth was no: a baby had been born, but the judge still regarded him as "a fetus" who was not "a person whose life state law could protect." [Floyd v. Anders] One of the purposes of our bill was to mark what surely had to stand as an outer limit to that constitutional right articulated in Roe v. Wade: Whatever else that case meant, it could not have entailed the right to kill a baby out of the womb, born alive.
My bantering nemesis in the hearings before the Judiciary Committee in the House was Jerry Nadler, a Democrat from Greenwich Village. He was rather bemused by the notion that some of us would urge the Congress to act, as a political branch in countering or confining a decision of the Supreme Court in Roe v. Wade. He suggested in a mocking way that, while we're at it, he and his colleagues we might try their hand at revising another case, notably Bush v. Gore. To that I said at the time that he should indeed try his hand, for it was good to get practice again at this sort of thing. But I left him with one word of caution emanating from Lincoln's teaching: Whatever else you do, just remember that you will have to respect the judgment in the case in regard to those two litigants.
Hadley Arkes is the Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence