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
Jackson argued that he was entitled to use his constitutional authorities to defeat the threat to democracy posed by the Bank.
166
He could order and, if necessary, fire subordinates such as Duane. The Constitution's grant of the executive power to the President, and his duty to execute the laws, made him "responsible for the entire action of the executive department."
167
Therefore, "the power of appointing, overseeing, and controlling those who execute the laws -- a power in its nature executive -- should remain in his hands."
168
If a subordinate would not obey the President's orders, the President had every constitutional right to fire the subordinate and replace him with someone who would. These subordinates included the Secretary of the Treasury, regardless of what duties Congress had delegated to him.
The third leg of Jackson's theory of the Presidency was to link his duty to protect and his constitutional power to enforce the law with his role as representative of the people. Jackson declared, not for the first nor last time: "The President is the direct representative of the American people."
169
Through their selection of a President, the American people held the executive branch accountable. This required that Jackson have full control over every executive branch official and the enforcement of all federal law. Otherwise, there is "no direct responsibility to the people in that important branch of this Government."
170
If the Treasury Secretary could reject a presidential order, it would allow him to defy "the Chief Magistrate elected by the people and responsible to them."
171
An independent Treasury Secretary, followed to its logical conclusion, "will be found effectually to destroy one coordinate department of the Government, to concentrate in the hands of the Senate the whole executive power, and to leave the President as powerless as he would be useless -- the shadow of authority after the substance had departed."
172
Jackson effectively claimed a role not unlike that of the ancient Roman tribunes, implying that the President had a superior tie to the people. In perhaps the first example of a now common presidential practice, Jackson directed his message over the heads of Congress to the people. He claimed that he was only carrying out the wishes of democracy against the conspiracies of an aristocracy to hoard power. In this, Jackson went beyond the vision of the Presidency held by Washington and Jefferson. Washington thought of himself as a republicanized monarch, and Jefferson as a prime minister. The President remained independent of Congress, but the Presidency relied upon a symbiotic relationship with the legislature for progress.
Jackson's Protest was the Presidency's declaration of independence. Although each branch was independent of the other, the executive was no longer just an equal. He was superior in his direct ties to the American people. Rather than seek legislation from Congress, Jackson's Presidency would speak for the people and force Congress to cooperate with
his
agenda. The President, not Congress, would dictate the tempo of politics and the focus for legislation.
Whigs in the Senate understood what Jackson was about, and they reacted with anger. Webster argued that the President did not hold all of the executive power, did not enjoy a removal authority, and did not control the cabinet secretaries. But he reserved his strongest attack for the theory of a plebiscitary Presidency. Jackson believed his claims of presidential power were "enough for a limited, restrained, republican government! An undefined, undefinable, ideal responsibility to the public judgment!"
173
"The Constitution," Webster declared, "nowhere calls him the representative of the American people; still less their direct representative."
174
Why else, Webster asked, was the President chosen by the Electoral College rather than by direct ballot?
175
If Jackson were right, Webster exclaimed, "then I say, Sir, that the government (I will not say the people) has already a master."
176
Calhoun spoke even more strongly, exclaiming, "What effrontery" and "boldness of assertion" from Jackson.
177
"Why, he never received a vote from the American people," but only from electors.
178
Calhoun predicted that Jackson would appeal to the people again to wage "hostilities" against the Senate.
179
Urging the Senate to repudiate the Protest, Clay again predicted the coming of dictatorship. Under Jackson, "everything concentrates in the president. He is the sole Executive; all other officers are his agents, and their duties are his duties."
180
This claim, Clay declared, "is altogether a military idea, wholly incompatible with free government."
181
The Senate voted 27-16 to reject Jackson's Protest, and then used its confirmation power over appointments to fight back.
182
It refused to confirm Jackson's nominees to the Bank's board of directors and, to put the icing on the cake, refused to confirm Taney as Treasury Secretary.
183
Jackson, however, would not be beaten. Do what they might, Biddle, the Great Triumvirate, and the Whig Party could not overcome the fact that they lacked the two-thirds majority to force a recharter or a return of the deposits over Jackson's veto. Jackson used his leadership of the Democratic Party to name anti-Bank men to important congressional positions and to focus state organizations on the war with the Bank. Biddle's decision to instigate a financial panic backfired and turned public opinion against him. In January 1834, Jackson terminated the Bank's role in paying federal pensions to Revolutionary War veterans.
184
When Biddle refused to return the funds to the government, Jackson blamed the suspension of pensions on Biddle, a story the public was only too eager to believe.
By spring, the President's political work bore its fruit, with the governor, legislature, and two Senators from Pennsylvania -- the home state of the Bank -- publicly condemning Biddle and the Bank for the panic. Other state executives quickly followed suit. Led by Polk, the House passed a resolution against recharter and return of federal deposits, and launched an investigation into the Bank's role in causing the panic. Biddle made matters worse by refusing to testify or provide documents to the House investigation.
Within the year, Jackson's victory was complete: Democrats beat the Whigs badly in the 1834 midterm elections, his administration retired the entire federal debt (reducing the need for a federal bank) in January 1835, the Senate voted to remove the censure resolution from its books, and Roger Taney was confirmed as Chief Justice upon John Marshall's death in 1835.
185
Jackson reveled in his victory. "I have obtained a glorious triumph," he wrote to a friend. The House's support "put to death, that mamouth [sic] of corruption and power, the Bank of the United States."
186
There is a good case to be made that Jackson's campaign against the Bank contributed to the boom-and-bust swings of the American economy in the following decades. There is little doubt that a sophisticated market economy needs an independent central bank to prevent politicians from manipulating the money supply for political reasons. The problem for many developing economies is keeping politics out of the bank. The problem for Jackson, however, was to keep the Bank out of politics. He took on the Bank because it had become a renegade institution using its special economic position to interfere in political elections. Jackson's greatness did not come from destroying a crucial part of America's financial architecture, but in fighting an agency of the federal government that was trying to control the political process for its own benefit. It would have been impossible for Jackson to prevail had he not exercised his constitutional powers of the veto, removal, and law enforcement against the wishes of Congress.
THE TARIFF
JACKSON'S FINAL GREAT achievement again drew upon the power of his office to protect the Union. Early indications would not have placed Jackson in the camp of nationalists. Jackson had ended plenary federal control over Indian policy. In his veto of the Bank, as well as several improvements bills, Jackson adopted a limited view of federal powers that outdid even Jefferson in its devotion to strict construction. But when Jackson saw the rising threat of secession, he did not hesitate to stretch the powers of his office to preserve the Union.
187
The threat came from South Carolina over national tariff rates. Like the national bank, the political importance of the tariff may be difficult to grasp today. The contemporary tariff is most noticeable for its absence -- the success of the American-supported GATT, NAFTA, and WTO agreements has rendered the tariff a rather trivial matter. In antebellum America, however, the tariff was an issue over which some were willing to die, and others to break up the Union.
Clay's economic program, the "American System," deployed the tariff to protect domestic manufactures and promote road and canal construction, while Southerners deeply opposed the Tariff of 1824, which enacted steep duties on manufactured imports.
188
The tariff hit the South's economic interests hard; planters had to export raw material, primarily cotton, into the competitive world market, but had to purchase finished products in the home market. Some Southerners believed the Constitution prohibited taxation for purposes other than raising revenue and that one part of the nation -- the North -- could not benefit from taxes at the expense of another. In 1828, a bill that raised rates became known in the South as the "tariff of abominations" and sparked secessionist rallies in several Southern cities.
189
South Carolinians rallied around the idea of "nullification." Developed by Calhoun, nullification maintained that the Constitution was only an agreement among the states, which retained their independent sovereignty.
190
No
single
American people had created the Constitution as their governing document. If a majority imposed an unconstitutional law on a single region, a state could nullify the federal law within its borders, and its officials could block federal officers from carrying out national laws.
Historians argue about the origins of nullification, but there can be little doubt that it more than echoes Jefferson's claim, made in the Kentucky Resolves, that a state could oppose the implementation of the Alien and Sedition Acts. Calhoun similarly believed that South Carolina could refuse to enforce an unconstitutional tariff while it sought redress through the national political process. If those efforts failed, a state could consider secession. South Carolina adopted a legal brief defending nullification, secretly drafted by Calhoun and published as the "South Carolina Exposition and Protest," which concluded that the states possessed the sovereignty to veto actions of the federal government.
191
The real issue behind nullification was slavery. A popular majority that could enact a tariff, Southerners worried, could eradicate slavery, too. This question prompted one of the greatest debates ever to occur in the Senate, between Webster and South Carolinian Robert Hayne.
192
After Hayne defended state sovereignty independent of the Constitution, Webster gave his well-known speech on the Union that ended with the famous words, "Liberty
and
Union, now and forever, one and inseparable."
193
Jackson made his own views on nullification clear at a political banquet in honor of Jefferson in April 1830, held by Southern and Western Congressmen opposed to the tariff. With Calhoun in the audience, Jackson had come ready to take on nullification. Several preselected speakers gave increasingly inflammatory toasts in favor of state sovereignty, and when the President's turn came, all became silent to see what position he would take. As always, Jackson left no doubt about where he stood. "Our Union," he declared, "it
must
be preserved."
194
Calhoun followed. In the midst of a rambling toast, the Vice President responded, "The Union, next to our liberty the most dear. May we all remember that it can only be preserved by respecting the rights of the States, and distributing equally the benefit and burden of the Union."
195
Jackson had declared war on nullification. Although perhaps in conflict with his views on the Bank and internal improvements, his view followed his guiding principle of democracy. If the majority of the people spoke through their elected representatives, a state had no right to frustrate their will. The Union had been the product of the Revolution, in which Jackson had risked his life as a young boy, and to which he had lost his mother and brother. He was not about to see it broken by a state, even the state of his birth. "There is nothing I shudder at more than the idea of the separation of the Union," he wrote in 1828.
196
Although he firmly believed that the powers of the federal government were limited and that the states were to exercise all others not granted, Jackson believed even more in the permanency of the Union. State sovereignty could not justify secession.
Jackson hoped to reach a compromise as the election of 1832 neared. Without admitting the legitimacy of the South's grievances, he successfully urged Congress to enact a new bill that reduced tariffs. The national debt was being steadily reduced, and soon the revenue from the tariff would no longer be needed. A mere month after Jackson won reelection, South Carolina responded by holding a convention that declared the 1832 law void and threatened secession.
Jackson responded with a two-front strategy, one political and one constitutional. In his December 4, 1832, Annual Message to Congress, Jackson offered a political compromise. Tariff protections "should not exceed what may be necessary to counteract the regulations of foreign nations and to secure a supply of those articles of manufacture essential to the national independence and safety in time of war."
197
There was "no reason to doubt" that domestic industry was "beneficial to our country," and he acknowledged that "large capital" had been invested in reliance on the tariff. Nonetheless, investors and producers had no right to expect "that the people will continue permanently to pay high taxes for their benefit, when the money is not required for any legitimate purpose..." In a nod to South Carolina, Jackson criticized a high tariff as tending "to beget in the minds of a large portion of our countrymen a spirit of discontent and jealously dangerous to the stability of the Union." He proposed that Congress study a gradual reduction of rates. To Jackson, the policy issue -- how high tariff rates should be -- was always open for bargaining.