Authors: John Yoo
Tags: #History: American, #USA, #U.S. President, #Constitution: government & the state, #Constitutions, #Government, #Executive Branch, #Executive power - United States - History, #Constitutional & administrative law, #Law, #Constitutional history, #United States History (Specific Aspects), #Constitutional, #United States, #Presidents & Heads of State, #POLITICAL SCIENCE, #Legal status, #Executive power, #History, #Constitutional history - United States, #History of the Americas, #United States - General, #Presidents, #National Law: Professional, #Political History, #General, #History - U.S., #Presidents - Legal status, #etc - United States - History, #Biography & Autobiography, #Government - Executive Branch, #etc., #laws
Jefferson's policies had succeeded because of a short lull in the struggle between Britain and France. Once war resumed, Jeffersonian policies could not survive. Napoleon's Continental System subjected to seizure any ships transporting goods with Great Britain; Britain retaliated with an order allowing the capture of any ships carrying goods between France and other countries. This threatened the booming trade that the United States had carried on not just with those countries directly, but between the European rivals and their colonies. Thanks to British naval warfare against France and Spain and the wartime diversion of Britain's own maritime fleet, the American merchant marine's registered tonnage grew from 558,000 tons in 1802 to 981,000 by 1810, a level it would not reach again for a century. Jefferson was quite clear on America's interest: for the United States to "become carriers for all parties as far as we can raise vessels" so that the New World could "fatten on the follies of the old."
52
Under Republican ideology, foreign markets would soak up the output of the virtuous yeoman farmers of the West.
Reversing these policies revealed a gap between Jefferson's ends and his means. If the United States wanted to coerce these nations into accepting free U.S. trade, it had no means available. The United States did not have the army or navy to coerce Britain or France, nor was Jefferson willing to alter his goal of free trade. If he were unwilling to build a military, Jefferson would have to pick sides. The choice that seems obvious today was Great Britain. The United States had close economic ties with Great Britain (50 percent of all U.S. exports went to the mother country), and the Royal Navy posed the only real military threat to the nation's territorial integrity. But Jefferson's worldview would not allow him to consider an alliance. Jefferson's love for all things French and his deep suspicions of Great Britain are well known. Even when the French had taken back Louisiana and put plans into action for its military occupation, Jefferson would not enter into a British alliance, though he entertained the idea at times. When his envoys had negotiated a peace treaty with Britain after the
Chesapeake
attack, Jefferson refused to send it to the Senate, even though it guaranteed favorable trade terms. British demands that the United States cease all trade with France and hand over alleged British deserters on American vessels were too much for the President to accept.
Jefferson instead chose the radical, untried tool of an economic embargo on both warring nations. Its object seems almost quixotic today -- to use a cutoff of American raw materials to force the warring parties to accept the principle of free shipping by neutrals. Britain and France were locked in a decades-long contest to the death. It is difficult to believe that an American embargo would coerce either side to make a concession favorable to its enemy, or force either to accept free trade with neutrals. Meanwhile, government power ballooned as Jefferson engaged in one of the most significant exercises of government power in American history. His attempt to prevent all exports of American goods drove him to monitor all shipping and land transportation near the borders. It required the seizure of property upon mere suspicion that it was meant for export. The embargo was akin to Prohibition, and it met with the same success.
Jefferson's attempts to enforce the embargo made a ruin of his second term. Yet, the embargo does not support the spectacle of an executive run amok on its own constitutional power. At each step, Jefferson informally suggested and then received a delegation of power from Congress -- each more draconian than the last. He took the plunge at a December 17, 1807, cabinet meeting, when he decided to send a message to Congress calling for the embargo. Displaying an uncanny prescience, Gallatin the next day told the President he "prefer[red] war to a permanent embargo" because of the "privations, sufferings, revenue, effect on the enemy, politics at home, etc."
53
Jefferson sent his special message to Congress that same day, requesting a ban on the ground that it would protect American ships and sailors from capture by Britain or France. Congress immediately passed the First Embargo Act, which prohibited any U.S. seagoing vessel from leaving a domestic port.
54
It allowed shipping between points within the United States, but only if the owner of the ship posted a bond equivalent to double the value of the goods and allowed the President to approve individual voyages abroad. Less than a month later, Congress passed the Second Embargo Act to expand the prohibition to coasting and fishing vessels, which apparently had picked up the trade with Canada and the West Indies.
55
In March 1808, Congress followed with the Third Embargo Act, which required higher bonds, increased the penalties for violation, and extended the embargo beyond shipping, to any exports carried by sea or land.
56
Resistance to the embargo was vigorous, but only in certain regions. While the middle states followed the law, New England -- which depended on trade more than others -- became a hotbed of disobedience. Ships left Boston Harbor at night in defiance of Treasury officials or moved to harbors with little official presence, and large rafts carrying goods traveled across the border to Canada. Smugglers evaded weak customs officers in Baltimore and Georgia. Defiance of the law caused Jefferson to seek a drastic solution -- the First Enforcement Act -- in April 1808. It required all vessels of any size in the nation to receive clearance to sail, and to load their cargo under the supervision of a Treasury official. No ship with cargo could leave a port near foreign territory, for any reason, without the permission of the President himself. Congress authorized naval vessels and smaller gunboats to stop and search any vessel suspected of intending to evade the ban. Federal officials could seize domestic goods in any area near foreign territory until a bond was posted to guarantee their delivery within the country. Congress did not require warrants or any judicial review for the search and seizure of ships or goods on land.
57
Leonard Levy has charged the First Enforcement Act with approaching the "precipice of unlimited and arbitrary power as measured by any American standard then known." Putting to one side the Fourth Amendment problems, what remains surprising is the level of direct presidential involvement. Gallatin drafted each of the embargo and enforcement laws for Jefferson, who personally reviewed them and sent them on to congressional allies. The embargo allowed any shipper to appeal to the President for an exception, which Jefferson personally reviewed. Jefferson drafted and issued guidelines for federal port officials to use in administering the embargo, and he was as strict as possible in exercising his discretion, ordering executive officers "to consider every shipment of provisions, lumber, flaxseed, tar, cotton, tobacco ... as sufficiently suspicious for detention." If doubt arose, Jefferson instructed, "consider me as voting for detention."
58
As resistance to the embargo grew, the administration tightened its grip. Smugglers on Lake Champlain, along the New York-Canada border, began to use large rafts to carry goods with armed guards. Gunfire between smugglers and border guards broke out. In response, Jefferson issued an order declaring an insurrection and ordering the use of armed force to restore order. Jefferson used the same act that Washington had invoked during the Whiskey Rebellion, updated in 1807 to allow the President to call out the army and navy in addition to the militia.
59
Jefferson declared that the region was in insurrection, ordered the dispersal of those hostile to the laws, and ordered the use of armed force to restore order. Jefferson dispatched navy gunboats to patrol the lake, and the governors of New York and Vermont followed by sending the militia to the Champlain district. Armed conflict occurred between smugglers and the militiamen, with some loss of life. But the Jefferson administration found it difficult to win the cooperation of local populations in enforcing the embargo. Juries often refused to convict violators, while cargo owners brought suits in state court against federal officials for damages. When the Jefferson administration asked state governors to use their militias to enforce the law, they did so only reluctantly.
As smuggling spread, the administration relied more heavily upon the military. During the summer of 1808, Jefferson ordered the general use of the navy throughout the nation's seaboard and waterways to enforce the embargo. Navy vessels essentially blockaded American ports, and gunboats hunted down smugglers in rivers and lakes. While the administration succeeded in keeping the vast majority of the merchant marine in port, significant amounts of exports made it out of the country.
60
Gallatin wrote Jefferson to recommend that the administration stop every vessel from moving anywhere in the country, and affirmed that federal officials had the power to seize or detain property anywhere. He even suggested that federal officials remove the rudders of all ships in harbor, so they could not secretly sail away. "Congress must either invest the Executive with the most arbitrary powers and sufficient force to carry the embargo into effect, or give it up altogether," the Treasury Secretary wrote the President.
61
The only alternative, Gallatin observed, was war, "but with whom?" Jefferson agreed, and proposed the Second Enforcement Act. Passed by Congress in January 1809, it prohibited loading a vessel with the intent to break the embargo, gave federal collectors the authority to refuse permission to load cargo, delegated broad powers to detain vessels, and allowed federal officials to seize cargoes from any ship, wagon, or other vehicle upon suspicion they were heading abroad.
62
For the first time, Congress vested the President with the authority to call out the militia and the military to enforce the embargo laws. Jefferson would no longer need to declare an insurrection or rely on the courts to find that federal law was being blocked.
The administration soon made use of its new powers. As Leonard Levy has observed, the systematic use of the military to enforce the laws throughout the nation was and remains unprecedented. Aside from the Civil War, the use of the military domestically has been targeted at localized disturbances, temporary in nature, and deferential to the return of civilian government. During the embargo, Jefferson deployed military forces throughout the nation for long periods, sometimes for more than a year. According to Levy, Jefferson "had answered foreign attacks on American commerce by a steady siege against American commerce and by quartering troops among the American people."
63
Henry Adams claimed that "personal liberties and rights of property were more directly curtailed in the United States by embargo than in Great Britain by centuries of almost continuous foreign war." In light of these judgments, it should be no surprise that the embargo had a quick end. Within one month of the passage of the Second Enforcement Act, outright defiance of the embargo increased. Representatives from New England and New York rushed to overturn the embargo, which ended on Jefferson's last day in office. Jefferson did not try to stop them.
The embargo had succeeded in its immediate aims but failed in its grander objects. American exports to Europe were greatly reduced, but the larger end of forcing Britain and France to change their policies on neutral shipping was not achieved. Neither showed any intention of lifting its restrictions on American trade, and neither appeared to suffer much economic distress. Relations toward the competing European powers would continue to bedevil American leaders until they chose the disastrous course of intervention. The only thing the embargo brought was a reduction in the ability of American merchants and farmers to benefit from European disorder. Jefferson had expended significant resources, reduced civil liberties, and compromised his belief in government of limited powers. What should be clear is that this was not the product of an executive drunk on its own constitutional powers. Each expansion of the embargo, and the corresponding growth of government power to enforce it, was granted to the executive by legislative act. Rather than a cautionary tale about presidential power, the embargo disproves any direct link between executive power and reckless government policies. Jefferson showed that the President and Congress can agree, and still lead the nation down a path to failure and waste.
CONCLUSIONS
cONTRARY TO POPULAR belief, Jefferson believed in an independent Presidency with inherent powers, and he used them vigorously to the nation's great benefit. Jefferson did not hesitate to exert direct control over the entire executive branch, challenge the courts over the right to interpret the Constitution, and use the military to advance national interests abroad while keeping firm control over foreign policy. Jefferson believed that the President could act extra-constitutionally when the demands of necessity required, so long as he sought popular approval afterward. His belief in the prerogative allowed him to seize the great opportunity of his Presidency, the Louisiana Purchase, while also maintaining his strict construction of government powers. Domestically, Jefferson produced the innovation of the President as legislative leader, introduced a close coordination of the executive and legislative branches, and used the political party to overcome the constitutional separation of powers between the President and Congress.
Drawing the two closer together, however, did not prove an unadulterated blessing. With a conduit open between the two branches, power could flow in either direction. Once its founder left the Presidency, the Republican Party shifted its weight of gravity toward the legislature. Republicans in Congress assumed the right to select the party's presidential nominee, justifying the nickname "King Caucus." Indeed, it was unclear whether congressional Democrats would select Madison or Monroe for the 1808 elections until Jefferson made his wishes known. This broke the Framers' effort to forge a direct link between the Presidency and the people, and to give the chief executive independence from Congress. A candidate chosen by a congressional party caucus would make commitments to legislative leaders to get elected, and would remain keenly conscious of congressional wishes if he wanted to be renominated. A President chosen by Congress would be less likely to exercise his independent powers vigorously, nor stray far from the wishes of his party majority.