Was the Emancipation Proclamation an Executive Order that bypassed Congress and freed 3 million slaves?

Question

This should be an easy one, but I wanted to ask so we have confirmation or refutation.

This image is making the rounds on facebook:

So, how factual is this statement?

Answer 1

Wikipedia calls it a "Presidential Proclamation",

The Emancipation Proclamation was a presidential proclamation

Reading the text of it he claims that his authority for doing so was as C-in-C in time of war:

Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander in Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority etc.

It says "proclamation" all over the place:

• Proclamation 95 - Regarding the Status of Slaves in etc.
• By the President of the United States of America
  A Proclamation
• Whereas on the 22d day of September, A.D. 1862, a proclamation was etc.

It includes some important "orders":

And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States and parts of States are and henceforward shall be free, and that the executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defense; and I recommend to them that in all cases when allowed they labor faithfully for reasonable wages.

And I further declare and make known that such persons of suitable condition will be received into the armed service of the United States to garrison forts, positions, stations, and other places and to man vessels of all sorts in said service.

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Here is opinion saying that Proclamations "carry the same force of law as executive orders":

Presidential Proclamations Project at the University of Houston

A presidential proclamation is “an instrument that states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (by recognizing that the circumstances in law have been realized)” (Cooper 2002, 116). In short, presidents “define” situations or conditions on situations that become legal or economic truth. These orders carry the same force of law as executive orders – the difference between the two is that executive order are aimed at those inside government while proclamations are aimed at those outside government. The administrative weight of these proclamations is upheld because they are often specifically authorized by congressional statute, making them “delegated unilateral powers.” Presidential proclamations are often dismissed as a practical presidential tool for policy making because of the perception of proclamations as largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.

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The National Archives seem to think they're similar enough that they put them in the same book: Codification of Presidential Proclamations and Executive Orders Chapters although they're listed separately in each chapter.

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Apparently a source for the claim in the OP is Nancy Pelosi, quoted in the Washington Times,

House Minority Leader Nancy Pelosi on Thursday compared President Obama’s planned executive action on immigration reform to President Lincoln’s Emancipation Proclamation.

“Remember, President Lincoln said, ‘public sentiment is everything,’” the Democrat said at a press conference, Breitbart reported. “I wish the Republicans would at least give the public a chance to listen to what the president is trying to do.

“And also does the public know the Emancipation Proclamation was an executive order?” Mrs. Pelosi continued. “People have to understand how presidents have made change in our country, Congress catching up, and in the case of Ronald Reagan, improving upon what Congress has done.”

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In summary I think that this was both:

• A proclamation to the people
• An order to the executive branch and the military

Answer 2

As this question is a just fact checking on a non-recent topic I am going to commit the 'sin' of quoting wikipedia.

The Emancipation Proclamation was a presidential proclamation

Per Emanipation Proclamation

And

According to political science professor Phillip J. Cooper, a presidential proclamation "states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (by recognizing that the circumstances in law have been realized)".¹ Presidents define situations or conditions on situations that become legal or economic truth. These orders carry the same force of law as executive orders — the difference between the two is that executive orders are aimed at those inside government while proclamations are aimed at those outside government.

The administrative weight of these proclamations is upheld because they are often specifically authorized by congressional statute, making them “delegated unilateral powers”. Presidential proclamations are often dismissed as a practical presidential tool for policy making because of the perception of proclamations as largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.²

Per Executive Order on presidential proclamations, so summarizing the picture is technically not true, although it must also be noted that the two concepts are commonly confused as Wikipedia has a link at the top of both presidential proclamations and executives orders with a "Do not confuse with" link to the other article.

The sources wikipedia is citing btw are (decided to include wikipedia instead of the below link becaues it just included that bit more information and context):

 ¹ Phillip J. Cooper. 2002. By Order of The President. University of Kansas Press. Page 116.
 ² Presidential Proclamations Project, University of Houston, Political Science Dept., Retrieved 2009-12-07

Answer 3

There are 3 claims here:

The Emancipation Proclamation was an executive order.

Mostly True. The National Archives notes that Proclamations are used to to communicate special observances and commemorative dates while Executive Orders manage the operations of government. Although the Emancipation Proclamation (EP) doesn't appear on. Lincoln's list of presidential executive orders, people use the terms interchangeably.

Executive Orders are signed documents, numbered consecutively, through which the President of the United States manages the operations of the Federal Government.

Proclamations are signed documents, numbered consecutively, through which the President of the United States communicates information on holidays, commemorations, special observances, and trade.

The Emancipation Proclamation bypassed Congress.

False. The Emancipation Proclamation was enforcing the Second Confiscation Act passed by congress in July 17, 1862. Lincoln specifically refers to the act in his Preliminary Emancipation Proclamation. The EP only applied to the states the Union was at war with. This was within his power as Commander-in-Chief (CiC) of the armed forces to execute the law.

"Sec.9. And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States; and all slaves of such persons found on (or) being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude and not again held as slaves."

Lincoln wasn't bypassing Congress. In fact, because Lincoln feared that after the war, states could reinstate slavery, that only a fraction of all the slaves were freed, he promoted passage of the 13th Amendment that would abolish slavery.

The Emancipation Proclamation declared 3 million slaves free.

Half true. The Emancipation Proclamation only applied to states in rebellion. This 3 million number comes from 1860 census, and is the highest possible number of slaves freed by the Emancipation Proclamation. If you only include the states specified as in rebellion:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.

And exclude the states the Union controlled (Kentucky, Maryland, Tennessee, Missouri, Delaware, and parts of Louisiana/Virgina), the 3.9 million slaves reduces the maximum to the range of 2.4 million-3.2 million. A clearer image of this slave population density map might make the maximum number of slaves the Emancipation Proclamation could apply to more precise. While Lincoln did declare these slaves free, they were under the control of the Confederate States of America and not subject to his declaration until Union troops conquered territory (see SEC 9).

The official number actually freed isn't known. The autobiography by James McPherson, [Marching Toward Freedom: The Negro in the Civil War, 1861-1865] puts the number at around half a million.

"Thousands of slaves in areas near the Northern army camps left their plantations and went over to the Yankees the first chance they had. More than half a million of the 3,500,000 slaves in the Confederacy came into Union lines and gained freedom during the war."

Harold Holzor came up with the same estimate:

In the end, precisely how many enslaved people the document alone actually freed remains unanswerable. By reliable estimates, the number may approach 500,000.

Lincoln scholar Mark Neely Jr. contends that the Proclamation freed 200,000:

Abraham Lincoln and his Secretary of State William Seward maintained that the Emancipation Proclamation freed at least 200,000 slaves by February 1865.

Answer 4

The claim has 3 parts. one is somewhat true, one is true; one - the most relevant one in the context of the image and the quote - is false. Let's see the breakdown:

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1. Claim: E.P. Was an Executive Order

   Evaluation: This is true in a technical but non-notable sense, and false in the only context that would make this image/quote notable.

   • Yes, it was a type of presidential action that is closely linked to and frequently bundled with Executive Orders (see excellent answer from @ChrisW for details).

     However, nobody ever contested that President couldn't issue Executive Actions, nor that Emancipation proclamation wasn't one. The reason this claim is at all notable is not merely the classification of the action, but the constitutional context it was taken under.

     Please note that according to the site policy the counter-claim should be notable, not just the claim.

     As such:

   • No, it was NOT an executive action that was similar to the kind that the quoted person (Nancy Pelosi) referred to:

     • The Emancipation proclamation was very explicitly done under the President's War Powers, and directly and purposefully limited to the Confederate states that were a belligerant combatant at the moment.

       Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander in Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority etc.

     • This is drastically different in Constitutional scope from any normal Executive Orders, most specifically, the one Pelosi was referring to - Barak Obama's 2014 orders - which were NOT applicable to actions aganist an armed rebellion in his capacity as CiC.

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2. Claim: E.P. declared that 3 million slaves were free

   Evaluation: true based on un-referenced Wikipedia statement:

   ... but as the Union army took control of Confederate regions, the Proclamation provided the legal framework for freeing more than 3 million slaves in those regions.

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3. Claim: E.P. was "bypassing Congress"

   Evaluation: 100% false, both in technical legal sense and in the spirit of things.

   Please note that again, this is the critical part of the claim. Nobody objects to the fact that Emancipation proclamation was an Executive Order (and therefore the first part of the claim is by itself offtopic for Skeptics.SE).

   The controvercy and the notability of both the claim and the subject matter stems specifically from 2014 orders being done "bypassing Congress".

   As such, let's look at technical legal sense and the spirit of things of E.P.

   • In a technical legal sense, it was not "bypassing Congress", because - as a wartime action limited to enemy combatants - it was 100% constitutionally in President's purvue and NOT in any way in Congress's purvue.

     This is indicated both in the wording of the Proclamation itself:

     Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander in Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority etc.

     ... as well as by later research:

     The Proclamation was based on the president's constitutional authority as commander in chief of the armed forces (src: "The Emancipation Proclamation: Freedom's first steps". National Endowment for the Humanities. Retrieved 2013-06-27)

   • Moreover, in a sense of the spirit, it was also NOT bypassing Congress, since Congress at the time was most likely in support of such an action

     I don't have direct data for support of Emancipation in all Confederate Southern states as of 1862, but the one piece of legislature we do know about supports this assertion (h/t @NateEldredge):

     The District of Columbia Compensated Emancipation Act of 1862, which freed slaves in the District and compensated their former owners. According to this document (PDF) (page 8), in April of 1862 it passed the House 92-38 and the Senate 29-14, and Lincoln signed it into law

     An important fact to not is that - at the time of Emancipation proclamation - the Congress did NOT seat the delegates from Confederate states:

     shall then be in rebellion against the United States; and the fact that any State or the people thereof shall on that day be in good faith represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such States shall have participated shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State and the people thereof are not then in rebellion against the United States (E.P., Paragraph II; and further reference can be found on Wikipedia under Civil War article detailing Congressmen from Southern states withdrawing from Congress)

     In addition, Wikipedia article on 13th Amendment notes that a lot of opposition that Lincoln had to overcome in the House for passing it in 1865 (it sailed through the Senate 38 to 6) was - first of all - SMALL (majority of the House supported it even in the first vote, 93 in favor and 65 against); and second of all, rooted in the politics of the thing (State's rights) and NOT opposition to emancipation per se:

     With no Southern states represented, few members of Congress pushed moral and religious arguments in favor of slavery. Democrats who opposed the amendment generally made arguments based on federalism and state's rights (src: Benedict, "Constitutional Politics, Constitutional Law, and the Thirteenth Amendment" (2012), p. 179.)

     I believe this should be enough to prove the point, but to get more historical data I also posted on History.SE: " What was the congressional level of support for Emancipation Proclamation? "