Tuesday, August 5, 2008

Louis Fisher on John Yoo, Jackson, and presidential power

As promised, Louis Fisher's response to John Yoo's second recently posted article on SSRN-- about Jackson and presidential power--appears below, along with Yoo's abstract. Lou's newest book, The Constitution and 9/11 (University of Kansas Press, 2008) will soon be available.

Andrew Jackson and Presidential Power by John Yoo, University of California, Berkeley
This paper examines Andrew Jackson's role in establishing the foundations of the Presidency. He is generally considered by historians to have been one of the nation’s most vigorous and powerful chief executives. He advanced a new vision of the President as the direct representative of the people. Jackson put theory into practice with the vigorous exercise of his executive powers—interpreting the Constitution and enforcing the law independently, wielding the veto power for policy as well as constitutional reasons, and re-establishing control over the executive branch. In the first of two great political conflicts of his time, the Bank War, Jackson vetoed a law that the Supreme Court and Congress both thought constitutional, removed federal deposits from the Bank, and fired cabinet secretaries who would not carry out his orders. In the second, the Nullification Crisis, Jackson again interpreted the nature of the Constitution and the Union on behalf of the people, and made clear his authority to carry out federal law, even against resisting states. Although he was a staunch defender of limited government, Jackson would confront head-on the forces seeking a weaker union and or a weaker Executive. His achievement would be to restore and expand the Presidency, within the context of a permanent Union. He would also spark resistance so strong that it would coalesce into a new political party, the Whig party, devoted to opposing concentrated executive power.
John Yoo, "Andrew Jackson and Presidential Power." Review by Louis Fisher, Library of Congress.
This article explores Jackson's views on executive power and how he "laid the foundations for what we can begin to recognize as the modern presidency." We are familiar with Jackson's view that the President is the direct representative of the people and therefore an agent in assuring that the "will of the majority" would prevail. According to Yoo, Jackson held a more extreme view. Jackson believed that the "more elected representatives there were, the more likely the popular will would be frustrated" (Yoo's language). Such a position is plainly monarchical and necessarily subordinates Congress -- as the elected representatives -- to a subordinate role in government. I'm not aware that Jackson adopted that view or intended to carry it out.

Yoo discusses Jackson's position on coordinate construction. Even though the Supreme Court in McCulloch upheld the constitutionality of the U.S. Bank, and even though previous Presidents and Congresses had accepted the constitutionality of the Bank, Jackson felt at liberty to veto the bill reauthorizing the bank. I see nothing monarchical about that. I think Jackson had ever right to reach an independent judgment about the constitutionality of the Bank. I recall in the Clinton years giving a luncheon talk at OLC, where I offered what seemed to me a noncontroversial position. Even though the Court had upheld the constitutionality of the independent counsel in Morrison, if Congress reauthorized the IC it was my view that the President could say he was aware of the Court's decision, much had changed since that time, it was his duty to protect his own branch, and could therefore veto the bill for independent constitutional reasons. Almost all of the OLC attorneys agreed he could veto the bill on policy grounds but definitely not on constitutional grounds, because that issue had been authoritatively decided by the Court. I brought up the Jackson precedent, which they seemed familiar with. The discussion ended in a stalemate. I think Jackson was well within his constitutional powers with his veto of the Bank bill and I think contemporary Presidents have every constitutional authority to follow that precedent with bills presented to them. There is nothing monarchical about that and no disrespect is shown either to the Court or to Congress. In fact, Congress itself could make an independent judgment that the Court hadn't gotten it right in Morrison and decide, on constitutional grounds, not to reauthorize an IC. The Court might feel compelled because of stare decisis to uphold Morrison. The other branches have no such obligation. Jackson's interpretation of his veto power came from the Constitution, not from some sort of "inherent" power as claimed by the Bush administration after 9/11.

Yoo refers to Jackson's victory, as military commander, at New Orleans in 1814. It would have been interesting had Yoo dwelled on some of the details. On December 15, 1814, anticipating a British invasion of the city, he issued an order for martial law and threatened the arrest and detention of anyone who failed to comply. After his victory over the British, local citizens wanted him to rescind the order for martial law but he refused to do so until there was formal notice of a final peace treaty. Someone in a local newspaper wrote an anonymous article objecting that persons accused of a crime should be heard before a civil judge, not the military, and called Jackson's policy "no longer compatible with our dignity and our oath of making the Constitution respected." Jackson found out who the author was and had him arrested. On the way to jail the person alerted his attorney and a request was made to a federal district judge, who issued a writ of habeas corpus, concluding that martial law could no longer be justified. Jackson then had the judge arrested for "aiding and abetting and inciting mutiny within my camp."

A court-martial decided that leveling the charge of "spying" against the author was far-fetched, because spies normally don't published their views in a local newspaper, even under a pseudonym. He was acquitted. Jackson, realizing that the judge would not be convicted either, had him marched four miles outside of the city and left there. News of the peace treaty came and the city celebrated. The judge found his way back to the city and ordered Jackson to appear in court to show why he should not be held in contempt. Jackson agreed to appear before the court and was fined $1,000, which Jackson paid.

Jackson's defense bears an eerie similarity to Lincoln's use of the Lockean rerogative after the outbreak of the Civil War. Jackson said that rights enjoyed under peaceful conditions might have to be surrendered in time of crisis, so "that we may secure the permanent enjoyment of the former. Is it wise, in such a moment, to sacrifice the spirit of the laws to the letter, and by adhering too strictly to the letter, lose the substance forever, in order that we may, for an instant, preserve the shadow?" Lincoln asked Congress on July 4, 1861: "are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Jackson and Lincoln understood that this exercise of emergency power was subject to checks. If the executive unwisely and illegally exercised emergency power, the other branches could invoke checks, including impeachment.

Yoo discusses Jackson's experience in 1818 with the Seminole War, leading to the capture of two British citizens: Alexander Arbuthnot and Robert Ambrister, who had been advising the Seminoles Jackson convened a military commission to try them. After a guilty verdict, Yoo says "he sentenced both to death." The story is more complicated. The commission, by the statutorily required margin of two-thirds, sentenced Arbuthnot to be hanged. The sentence was carried out. The commission also found Ambrister guilty and sentenced him to be shot. But the commission reconsidered the sentence and decided to sentence him to hard labor. Jackson overrode the commission and directed that he was to be shot. His order was carried out.

Both Houses of Congress investigated the matter. President James Monroe cooperated by forwarding a number of documents to Congress related to the case. The House Committee on Military Affairs issued a report highly critical of the trials, stating that it could find "no law of the United States authorizing a trial before a military court for offences such as are alleged" against the two men, except that of "acting as a spy." for which Arbuthnot was found not guilty. Having examined the documents, the committee was unable to find "a shadow of necessity" for the execution. The committee also criticized Jackson for the execution of Ambrister. Jackson acted "contrary of the forms and usages of the army, and without regard to the finding of that court, which had been instituted as a guide for himself." Other legal deficiencies were identified with the trials, including the use of hearsay evidence. In a "case of life and death," hearsay evidence "was never before received against the accused in any court of this country." The Senate also issued a report critical of Jackson. William Winthrop, commenting on these trials in his highly respected "Military Law and Precedents," observed that if any officer ordered an execution in the manner of Jackson, he "would now be indictable for murder."

As Yoo notes, "Jackson pursued the acquisition of Texas throughout his Presidency." He took a number of initiatives, but declined to recognize Texas. Many specialists in constitutional law regard the power of recognition as centered in the presidency, even though it is not expressly stated in the Constitution. That is not how Jackson saw it. Under pressure to recognize Texas, Yoo correctly states that Jackson "was unwilling to move forward with annexation because he worried that sectional divisions over slavery would complicate the election of his chosen successor, Martin Van Buren." Interestingly, Jackson "left the matter to Congress to decide, as under the Constitution it controlled the acquisition of new territory and the admission of states."

Yoo doesn't mention it, but Jackson had another reason not to recognize Texas. Both Houses of Congress passed resolutions stating that the independence of Texas ought to be acknowledged. Jackson refused to act. Had Texas been independent for a number of years and had other nations recognized it, he would have felt freer to act. But with Texas just breaking with Mexico, Jackson concluded that recognizing its independence could provoke war with Mexico and therefore invade the prerogatives of Congress. Yoo states that Presidents and Congresses "had long considered" the power to recognize other countries "part of the executive power over foreign relations. Jackson was no different." Yes he was.

On the matter of foreign relations, Justice Sutherland in the Curtiss-Wright case of 1936 claimed that the negotiation of treaties was left solely to the President: "he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it." That is nonsense. Sutherland himself, when he was a U.S. Senator from Utah, understood that his colleagues got involved in the negotiation of treaties. Yoo doesn't discuss this, but President Jackson understood the value of seeking the advice of Senators on how best to pursue treaty negotiations. Obtaining the Senate's views "on this important and delicate branch of our future negotiations would enable the President to act much more effectively in the exercise of his particular functions. There is also the best reason to believe that measures in this respect emanating from the united counsel of the treaty-making power would be more satisfactory to the American people and to the Indians" (the particular treaty being negotiated). Yoo does not discuss Jackson's view of treaty negotiation and its shared nature by the executive and legislative branches.

The article includes a lengthy section analyzing Jackson's policy against the U.S. Bank. His veto message includes this language: "The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges. . . . [and] on that point the President is independent of both." Jackson said he would grant the courts "such influence as the force of their reasoning may deserve." othing in that position smacks of monarchical government. Jackson took
an oath to support and defend the Constitution, to reach an interpretation as he saw it, not as other branches saw it. There is nothing arrogant or overbearing about that position. It is a power and a duty vested in the President by the Constitution.

Yoo states that Jackson was "the first President to make use of the 'pocket
veto'." Actually, it was James Madison, in 1812, but the exercise of the pocket veto power is not by itself an aggrandizement of executive power. When used properly, it is rooted in the Constitution. Any bill not returned by the President within ten days (Sundays excluded) shall become law "unless the Congress by their Adjournment
prevent its Return, in which Case it shall not be a Law." It all depends on the interpretation of what "prevents" the return of a bill. Jackson acted within the Constitution, not outside it.

Yoo writes: "Because of Jackson, any modern President with the support of thirty-four senators can completely stall any proposed legislation." Presidents had that leverage before Jackson. That is what the Constitution provides.

With regard to President Jackson's removal of executive officers to carry out his policy against the U.S. Bank, Yoo says that Jackson "believed it was his constitutional right to decide how to carry out federal law, such as the statute on the deposit of federal funds. In order to execute the law, he had to control subordinate officials in the executive branch." That principle was fully addressed by James Madison in 1789 when he argued for presidential removal power over Cabinet heads.

As part of the dispute between Jackson and Congress over the U.S. Bank, the Senate passed a resolution censuring Jackson. Yoo regards his "Protest" as "one of the most forceful declarations of presidential power in American history." Yoo doesn't explain on what principled grounds Jackson denounced the Senate's action. The grounds were constitutional. The Senate, adopting a resolution that stated that Jackson had acted "in derogation" of the Constitution and the laws, claimed the right to censure him on the basis of unspecified charges and without an opportunity to be heard. The Senate had acted in circumvention of the formal constitutional procedure for impeachment. The branch that had acted in derogation of the Constitution was the Senate, not Jackson. Three years later the Senate later expunged the resolution of censure from its records.

There is much of value in Yoo's article. Jackson strengthened the presidency and established important precedents that are still followed today. But he never claimed, as the Bush administration did after 9/11, that he could adopt policies in secret that
were in violation of statutes and treaties. In exercising powers vigorously, he called on powers that derived from the Constitution. As Yoo states in the concluding section, Jackson "did not restore the office by breaking its constitutional limits."