When Presidents Think About Defying the Courts

Roundup
tags: Supreme Court, Andrew Jackson, Trump



Jeff Shesol, a former speechwriter for President Clinton, is the author of “Supreme Power: Franklin Roosevelt vs. the Supreme Court” and is a partner at West Wing Writers.

 

... Trump has sought comparisons to Jackson, but the Jackson that conservatives are now invoking is not the populist but the unbending chief executive who showed contempt for the Supreme Court. In 1832, when the Court ruled that the U.S. government, and not the state of Georgia, had jurisdiction over the Cherokee Nation, Jackson reportedly said that Chief Justice “John Marshall has made his decision; now let him enforce it.” He never, in fact, said such a thing; neither was he responsible for enforcing the decision. (And, before the Court could issue its final order, the case became moot; Georgia had settled the litigation.) But the apocryphal quotation—nineteenth-century fake news—is apt today. Its high-handedness, its flash of menace, its disregard for constitutional norms—all this now has a familiar ring. It does not require a leap of the imagination to suggest, as a recent Times editorial did, that “Mr. Trump may decide—out of anger at a ruling or sheer spite at a judge—that he doesn’t need to obey a court order.”

If he did, he wouldn’t be the only President to defy the judiciary. The first was Thomas Jefferson. In December, 1807, at Jefferson’s insistence, Congress passed the Embargo Act, a drastic—and absurdly self-destructive—attempt to punish Britain for seizing American merchant ships; the act cut off all U.S. exports to any nation. In the Mississippi Territory, produce rotted in barns; in New England, dockworkers and sailors sat idle. Then, six months later, a Jefferson appointee to the Supreme Court, William Johnson, ruled that the President had exceeded his authority. To Jefferson, this marked a bitter betrayal. He took the extraordinary step of soliciting a dissenting opinion from his Attorney General, Caesar A. Rodney, distributing it to the press, and sending it to the customs agents who continued to enforce the embargo. Johnson, aggrieved, published a rebuttal of his own: the logic of Jefferson’s position, he argued, was “not that the executive have done right, but that the judiciary had no power to prevent their doing wrong.” Jefferson had the last word; the policy remained in effect until he left office, in 1809.

The most notable case of what scholars, euphemistically, call “nonacquiescence” came in 1861, at the start of the Civil War. That April, two weeks after the Confederate attack on Fort Sumter, Abraham Lincoln suspended the writ of habeas corpus between Philadelphia and Washington—a corridor rife with secessionists who had been burning railroad bridges and cutting telegraph lines. Lincoln’s order gave his commanders the right to imprison suspected saboteurs indefinitely, without so much as an indictment. A month later, Chief Justice Roger B. Taney—best known and much reviled today for his opinion in Dred Scott v. Sandford, in 1857—issued a categorical decision that only Congress, not the President, could suspend the writ. In a book on Lincoln and Taney, published in 2006, James F. Simon, of New York Law School, observed that the Chief Justice’s opinion had “a gauzy, surreal quality,” giving no indication that the nation faced an existential threat. (Taney himself favored secession.) Lincoln rejected the ruling and its reasoning. He would not agree that he, or any President, should permit a single clause of the Constitution to put the whole of the Union at risk. “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Lincoln asked a special session of Congress, that July. It was, of course, a rhetorical question. The order remained in force. ...




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