Crisis and Command: A History of Executive Power from George Washington to George W. Bush (17 page)

Jefferson's vision went further. He believed that Presidents ought to use the veto only when they were fairly certain that Congress had passed an unconstitutional law; he did not appear to think that he should veto laws because he disagreed with Congress's policy choices. On the other hand, Jefferson viewed his right to interpret the Constitution as extending beyond the President's role in the legislative process. As the Alien and Sedition Acts episode shows, he believed a President could decline to prosecute laws that in his opinion violated the Constitution. Similarly, Jefferson would not have expected the courts to feel bound by the views of the President and Congress on the constitutionality of the laws that they enact.

JUDGES

RELATIONS WITH THE judicial branch plagued the Jefferson administration. Federalists had a strong hold on the judiciary, and Jefferson thought of it as the last redoubt of his political opponents. "They have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of republicanism are to be beaten down and erased."
19
He believed that it was wholly appropriate for the executive and legislative branches to alter the personnel of the judicial branch in order to change the outcome of its decisions. Jefferson felt no unease in having Congress repeal new judgeships, postpone Supreme Court terms to influence decisions, and in his most ambitious effort, remove judges in an effort to change the direction of the law.

Republicans in the House began by eliminating the new judge-ships created by the Federalists in 1801. They followed by attempting to remove the judges who were left. In 1803, Jeffersonians began impeachment proceedings against John Pickering of New Hampshire, a Federalist district judge who happened to be crazy and a drunk. His mental sickness while chief justice of the state supreme court had led to efforts to oust him, and when a seat on the federal bench opened, state leaders promoted their way out of the problem by recommending Pickering.
20
In 1804, the Senate voted along strict party lines that Pickering's erratic behavior on the bench satisfied the "high crimes and misdemeanors" standard and removed him from office. Jefferson had written to the House to pass along complaints about Pickering and ask Congress to perform its constitutional functions.

Pickering was only target practice for bigger game. Justice Samuel Chase, a signer of the Declaration of Independence and former Anti-Federalist, had infuriated Republicans with his political outbursts on the bench, which included an attack on universal manhood suffrage and the Judiciary Act of 1803. Jefferson wrote a letter to a Maryland Congressman suggesting impeachment: "Ought this seditious and official attack on the principles of our Constitution, and on proceedings of a State, to go unpunished?"
21
His majority in the House obliged, beginning impeachment proceedings on the day of Pickering's conviction. But the Senate refused to convict, establishing the precedent that impeachment would not be used to overturn judicial decisions.

Jefferson's attack on the judiciary is conventionally understood as a defeat, and in terms of constitutional principle it was, but in terms of immediate politics, Jefferson came out ahead. After its decision in
Marbury
, the Supreme Court would not invalidate another federal law until
Dred Scott
a half-century later. The challenge to the judiciary effectively removed any threat that the federal courts would stand in the way of Jeffersonian legislation or presidential actions. Instead, the Marshall Court devoted itself to defending the prerogatives of Congress by vindicating the powers of the national government against those of the states. Jefferson's expanded view of the rights of the President and Congress against the judiciary, while constrained by the Senate in the end, helped him remove an obstacle to his policy agenda.

Jefferson's confrontation with the courts gave birth to another invocation of executive power. While Washington had refused to disclose treaty documents to the House, Jefferson withheld information from the judiciary. The occasion was the Burr conspiracy, whose historical details still remain unclear. In 1805, Aaron Burr (after killing Alexander Hamilton in a duel while no longer Vice President) hatched a scheme to launch a military expedition in the American Southwest. Depending on the account one believes, Burr either sought to attack Spanish possessions and bring them into the United States, or to detach territories from the United States and create for himself an independent empire, or some combination of the two. Burr had several private dinners with Jefferson at the White House while he secretly advanced his plans in Washington. In the end, one of the coconspirators, General James Wilkinson, turned against Burr as he was forming his troops, arrested him and other plotters, and sent them to Washington for trial.

Burr was prosecuted for treason before Chief Justice John Marshall, sitting as a federal trial judge in Virginia. Burr's defense sought information in Jefferson's possession, including reports on the conspiracy sent to the President. Marshall issued a subpoena for the documents, but Jefferson refused to acknowledge the Court's right to force the executive to produce information for its proceedings. He explained to the federal district attorney that a court's subpoena could not override the Constitution, which "enjoins his constant agency" in leading the American people.
22
Returning to his consistent view that the separation of powers required independence for each branch of government, Jefferson argued that the executive would become subordinate to the judiciary "if he were subject to the commands of the latter, and to imprisonment for disobedience." Proposing an argument that Bill Clinton would try, unpersuasively, before the Supreme Court, Jefferson argued that responding to the commands of the judiciary would "keep him constantly trudging from north to south and east to west." Jefferson would be "the sole judge" of what government documents to make public. As a compromise, he sent a limited set of documents to the U.S. attorney and ordered him only to release portions needed in the interests of justice. Marshall did not pursue the subpoena any further, and Burr and his coconspirators were acquitted. Jefferson's short-term political wishes were frustrated -- he was convinced that Burr was guilty of treason and had virtually convicted him in a special message to Congress -- but he established the first true precedent of executive privilege.

FOREIGN AFFAIRS: WAR

IT IS IN FOREIGN AFFAIRS that fans of Jefferson can make their best claim for his inclusion in the list of greatest American Presidents. While Jefferson used his powers as Commander-in-Chief to wage a successful offensive against the Barbary states -- inspiring the lyric "to the shores of Tripoli" -- his most important presidential act involved an exchange of property rather than cannon shot.

Despite his earlier attacks on executive power, Jefferson did not seek to withdraw the President's powers in war. Jefferson had planned to reduce the federal budget by cutting the military to the bone, but events caused him to depend on the navy maintained by the Adams administration. The immediate cause was relations with the Barbary pirates. Although history remembers them as bandits, they did in fact inhabit autonomous regions -- Algiers, Tripoli, and Tunis -- within the Ottoman Empire, and an independent nation, Morocco. Their leaders preyed upon the shipping of other nations, seized their cargos, and sold their sailors into slavery. Under the Continental Congress, the United States had paid tribute (amounting to $10 million under Washington and Adams) to allow American shipping to proceed unhindered.
23
Jefferson's accession to the Presidency coincided with demands for higher payments and the impressment of a U.S. Navy frigate by the Dey of Algiers.

Having long disliked paying the Barbary tribute, Jefferson decided to send the Navy to put an end to the insults to American shipping. In a meeting on May 15, 1801, the cabinet unanimously agreed that Jefferson should send a squadron to the Mediterranean as a show of force. No one in the cabinet, including Madison and Gallatin, believed that the President had to seek congressional permission to order the mission. The only legislative action was a statute enacted on the last day of the Adams administration, requiring that at least six existing frigates (American frigates at this time were the best in the world) be kept in "constant service" -- an effort to prevent Jefferson from reducing the navy to zero. Jefferson and his cabinet thought that the statute could be read to allow the President to send a "training mission" to the Mediterranean. The cabinet also agreed that the President had constitutional authority to order offensive military operations, should a state of war already be in existence because of the hostile acts of the Barbary powers. "The Executive cannot put us in a state of war," Gallatin said, "but if we be put into that state either by the decree of Congress or of the other nation, the command and direction of the public force then belongs to the Executive."
24
Jefferson and his advisors believed that the Constitution only required Congress to declare war to undertake purely offensive operations against a nation with which the United States was at peace. As Abraham Sofaer has observed, Jefferson and his advisors assumed they had the authority for the expedition simply by virtue of Congress's creation of the navy forces that made it possible -- a position no different from that taken by President Washington in the Indian wars.

Jefferson was clear on this in his orders to the naval commanders. The Secretary of the Navy ordered Commodore Richard Dale to proceed to the Mediterranean and, if he found that any of the Barbary states had declared war on the United States, to "chastise their insolence" by "sinking, burning, or destroying their ships & vessels wherever you shall find them."
25
Dale could impose a blockade and take prisoners, going well beyond simply protecting American shipping from attack. Upon arriving and discovering that the Bashaw of Tripoli had declared war, Dale issued orders to his squadron to attack any and all Tripolitan vessels. Lieutenant Andrew Sterett, commanding the 12-gun schooner
Enterprise
, encountered a 14-gun Tripolitan corsair on a resupply mission to Malta in August 1801. The
Enterprise
fought for three hours and killed half the corsair's crew, cut down its masts, threw its guns overboard, and set it adrift. Sterett could not keep the prize, because he was on the outward leg of his resupply mission, but his actions produced broad approval in the United States and a joint resolution applauding the crew.
26

The President portrayed his orders differently to Congress in December 1801. He claimed that he had not authorized offensive operations, that Sterett had acted in self-defense, and that the
Enterprise
had released the corsair because Congress had not authorized offensive operations. "Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel, being disabled from committing further hostilities, was liberated with its crew."
27
While some scholars have viewed Jefferson's words as presidential acceptance of Congress's control over war, Jefferson did not accurately represent Sterett's attack, the decision to release the captured warship, or the nature of the orders to Commodore Dale, nor did he reveal his thinking or that of his cabinet when those orders were cut. Jefferson followed by requesting that Congress authorize offensive operations. During the subsequent congressional debates, no one questioned the constitutionality of Jefferson's orders to the Mediterranean squadron, and several Congressmen argued that the President had the power to order hostilities because of the existing state of war. Congress ultimately chose to delegate broad powers to Jefferson to take whatever military measures he thought necessary as long as war continued.
28

Jefferson's message to Congress presents an example of a President's rhetoric not matching his actions. He claimed a constitutional limitation on presidential power that neither he nor his cabinet had previously raised, though one that ran in favor of Congress. He had sent American forces into a hostile area and ordered them to undertake offensive actions without any plausible congressional authorization. On the other hand, Jefferson did not act as aggressively as Presidents today. His orders to attack Tripoli responded to a declaration of war by the enemy. He could justify his orders on the ground that Congress had created the forces and that a state of war already existed, the position taken by the cabinet and supported by Hamilton in a newspaper essay. According to Hamilton, "[W]hen a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary."
29
Hamilton had things right as a matter of international law at the time, and most agree that he was correct on the Constitution. Presidents should not have to wait to seek authorization from Congress when another nation has already attacked or declared war upon the United States.

Efforts to solve the Barbary problem turned to another form of warfare, covert action. Shortly after the dispatch of the squadron to the Mediterranean, the American consul at Tripoli suggested that the United States help the brother of the Pasha to overthrow the government. In August 1802, Madison authorized American naval and diplomatic personnel to cooperate with the brother, and in May 1804 the cabinet voted to provide him with $20,000. The American consul at Tunis provided another $10,000, helped the pretender to the throne assemble a mercenary army, and ordered the Navy to transport him covertly to Tripolitan territory. The brother captured one of Tripoli's major cities in 1805, forcing a peace treaty with the United States that freed American prisoners, granted privileges to U.S. shipping, and ended the war. While Jefferson's actions certainly fell within Congress's broad authorization to "cause to be done all such other acts of precaution or hostility as the state of war will justify, and may, in [the President's] opinion, require," the President chose not to inform Congress of these secret measures until six months after the peace treaty was signed. No one objected, and Congress even bestowed a tidy sum on the brother for his cooperation.
30
Jefferson would set the precedent for future covert action against threats to national security, with Congress's main check remaining the power of the purse.