Wednesday, August 13, 2008

Magliocca on Yoo and Fisher on Andrew Jackson

Gerard Magliocca, Indiana University Law School, author of a book on Andrew Jackson, responds to the recent post on Lou Fisher's take on John Yoo's new paper on Jackson. Magliocca's post appeared first on Balkinization. It is re-posted here, with his permission.

Here's Magliocca, Old Hickory and John Yoo

I want to thank Jack [Balkin at Balkinization] for inviting me to post a response to John Yoo's article on "Andrew Jackson and Presidential Power." Professor Yoo cited my book, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (Univ. Press of Kansas 2007), several times in his piece, which led me to think about the relationship between Jackson's expansion of executive power and George W. Bush's more controversial initiatives.
I agree with the basic thrust of Yoo's analysis, which is that Jackson played a crucial role in freeing the Presidency from the control of Congress. In the 1810s and 1820s, a consensus developed among political elites that the Executive Branch was bound by the judgments of Congress as expressed through legislative precedent. This body of customary law, which was supported by the likes of James Madison, Daniel Webster, and Henry Clay, held that the President did not have unfettered discretion to veto legislation. Instead, he was obligated to sign bills that were consistent with prior enactments. The same reasoning also denied the President's right to take a constitutional position that was contrary to the "settled" views of Congress and maintained that Cabinet officers were accountable to Congress rather than to the President. Jackson successfully challenged these limitations in his veto of the Second Bank of the United States, which rejected the idea that Congress's prior endorsements of that institution tied his hands, and in his campaign to remove the federal deposits from the Bank, in which he made it clear that the Cabinet was answerable to him alone by replacing two Treasury Secretaries who refused to follow his orders. Yoo draws a more accurate picture of these developments than Lou Fisher does in his post, in the sense that Fisher implies that all of these questions were definitely settled by the Framers.
Nevertheless, I am not persuaded by Yoo's reliance on Jackson's pre-presidential actions as a military commander for guidance for how executive power should be read in a foreign policy context. While it is true that some of these extraordinary actions (e.g., declaring martial law, convening military commissions), were retroactively endorsed by the political branches, the circumstances under which that occurred were fraught with ambiguity and constitute, at best, questionable authority. (For a fine discussion of these issues, I would recommend Matthew Warshauer's book on Andrew Jackson and Politics of Martial Law). In any event, using discretionary battlefield experiences to define the functions of a civilian office that is embedded within a legal system is simply inappropriate. (For example, nobody thinks that Oliver Cromwell's military acts tell us anything meaningful about English parliamentary practice.) The only way that the analogy works is if military necessity trumps all other competing constitutional values, which is a treacherous assumption that Yoo and the Bush Administration have embraced a little too eagerly for my taste.
In the spirit of Professor Yoo's project, however, let me close by pointing out three ways of thinking about how Jackson's approach to executive authority relates to the path pursued by the current President. First, Jackson's claims were transparent. When he vetoed legislation, the reasons were given in written documents that were splashed across the front page of every major newspaper. And when he removed the federal deposits from the Bank, he explained the decision in a lengthy public report. As a result, everyone could examine these arguments and reach their own conclusion. By contrast, George W. Bush made most of his claims in secret, where only a handful of people could consider their merits. This undermined the quality and legitimacy of the legal analysis in question. Of course, some aspects of what the Bush Administration did had to be confidential, but clearly more disclosure could have been made. Second, Jackson never claimed that he possessed the constitutional authority to disregard a statute that regulated his office. The President's opponents, most notably Webster, did accuse him of harboring this ambition, but Jackson was always careful to disclaim this power. Thus, there was no counterpart to the Bush Administration's assertion that the Commander-in-Chief Clause - the textual hook for military necessity -- could be read to displace statutory law on issues like domestic surveillance or torture.Finally, Yoo points out quite correctly that the voters repeatedly endorsed Jackson's innovations despite the misgivings of his opponents. In campaigns where the President's foes ran hard against his "tyrannical" leadership, he was comfortably reelected in 1832 and saw his Democratic Party sweep the board in 1834 and 1836. It remains to be seen whether a similar mandate will be given to what President Bush has done, though the Republican defeat in 2006 and the party's relatively weak position entering the 2008 general election suggest that no such blessing is forthcoming.