Crisis and Command: A History of Executive Power from George Washington to George W. Bush (23 page)

In his first State of the Union Address, Jackson announced his support for Georgia. To allow the Cherokee to administer their own laws, he declared, would create an independent state within the borders of Georgia.
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He told Congress that he had "informed the Indians that their attempt to establish an independent government would not be countenanced by the Executive of the United States."
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He "advised them to emigrate beyond the Mississippi or submit" to state law.
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Jackson knew that the Indians would have little option but to emigrate.
33
Jackson's interpretation of the Constitution represented a 180-degree change in federal policy, but he showed little hesitation in announcing an independent opinion on the Constitution's meaning. The Supreme Court would not clearly identify the constitutional status of the Indian tribes until 1831.
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On the merits, Jackson's interpretation was mistaken. Presidents have generally controlled the recognition of foreign nations through their constitutional authority to receive foreign ambassadors, and Jackson could have claimed that his decision rested on the de-recognition of the Indian tribes as foreign nations. That, however, did not give the tribes the status of states, nor were the tribes transformed into states when the federal government granted them the right to enforce their own laws. If the tribes were states, the Constitution would have guaranteed them two Senators, the right to elect members to the House, and the right to send electors to the Electoral College. Nothing in the Constitution prohibited the exercise of sovereignty by a tribe within a state, just as nothing prevented the federal government from enjoying exclusive control of territory within a state.

Jackson placed the Indian Removal Bill, which set aside land west of the Mississippi for the Cherokee should they voluntarily leave Georgia, at the top of the legislative agenda for his first year in office.
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To force the issue, the bill rejected Cherokee claims to sovereignty and subjected them to state laws. It was consistent with Jackson's general view of allowing the states to regulate all matters not specifically given to the federal government. Northern Christian groups accused Georgia of violating federal treaties and attacked the administration for racism. Fierce public opposition to the bill mobilized a permanent anti-Jackson movement throughout the country and led to a split between free and slave states. It passed handily in the Senate, but by only 102-97 in the House in 1830.
36

Indians and their allies challenged Jackson in the courts. The Supreme Court threw out their first attempt to prevent Georgia from enforcing its laws because they were not a "foreign nation" that could appear in federal court.
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Georgia had already declared that it would not obey the Supreme Court, and Jackson's supporters in Congress introduced a bill to repeal Section 25 of the Judiciary Act of 1789, which had given the Court jurisdiction over state court judgments.
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The Cherokee secured a partial victory, however, because the Court declared that Indians were not simply citizens of Georgia, but instead were "domestic dependent nations" in a "state of pupilage," in which "their relations to the United States resemble that of a ward to his guardian."
39
The right case arose when Georgia arrested and jailed Christian missionaries who refused to leave Cherokee lands. Two missionaries, Samuel Worcester and Elizur Butler, challenged their imprisonment before the Supreme Court. In
Worcester v. Georgia
, Chief Justice Marshall struck down Georgia's Cherokee laws, not because they violated treaties with the Indians, but because they violated the Constitution.
40
According to Marshall, the "Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial."
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The Constitution, the Court held, gave exclusive control over all relations with the Indians to the federal government.

Georgia refused to appear before the Court and took no steps to obey the Court's ruling, and Jackson made no effort to enforce the Supreme Court's judgment. "Well, John Marshall has made his decision, now let him enforce it," Jackson was reported to have said.
42
Historians have disputed whether Jackson actually uttered those words, which were reported secondhand in a book long after he left office, but according to Daniel Howe's recent work, the comments were "consistent with Jackson's behavior and quite in character."
43
They illustrate Jackson's pugnacity, his Indian policy, and his view of the President's position in the constitutional system. Jackson followed Jefferson's belief that the executive had an equal right to interpret and enforce his own vision of the Constitution -- a path he would pursue to great effect in his battle with the Bank of the United States. As he had made clear in his State of the Union Address, Jackson believed that the federal government did not enjoy the sole prerogative to regulate the Indian tribes, nor did he feel a constitutional obligation to obey the interpretation of the Constitution held by another branch. Because the federal government itself was not a party to the case, Jackson did not need to respond to the Court's decision.

Rather than defy the Supreme Court outright, the Georgia courts simply refused to acknowledge it. Without any formal acceptance or rejection of
Worcester
by the state, the Supreme Court had no formal legal authority to order Georgia to obey the decision.
44
The Supreme Court, moreover, recessed for nine months and would have been unable to reverse any Georgia court decision.
45
Jackson commented that "the decision of the supreme court has fell still born, and they find they cannot coerce Georgia to yield to its mandate."
46
The confrontation generated political trouble for the administration. Newspapers widely reprinted
Worcester
, which served as ammunition against Jackson's reelection campaign. Jackson and Van Buren worked through the party machinery to convince the governor to commute the missionaries' sentences in exchange for their promise to drop the case.
47
Indian issues factored into the election of 1832, and Jackson took his reelection as a validation of his policy.

In Jackson's second term, the United States moved swiftly to remove the Indians. In 1835, a rump Cherokee government agreed to a treaty that traded their Georgia lands for $5 million and land in Oklahoma.
48
After the Senate ratified the agreement by only one vote, the U.S. Army forced the Cherokee to leave without any preparations for the long journey and hard winter. In 1838, 12,000 Cherokee migrated on the "Trail of Tears" to the West; it is estimated that 4,000 died.
49
By today's standards, American treatment of the Indians is shocking.
50
But under the standards of his time, Jackson's actions appear to have represented the views of the voting public.

Jackson may have honestly believed that the lot of the Indians would be improved by distance from whites, and his actions may have even prevented their wholesale destruction, which could have occurred had they attempted to remain in Georgia and other Western states. He achieved what he had wanted -- the removal of a perceived obstacle to the growth of the American republic. Jackson opened up 100 million acres to white settlers in exchange for 30 million acres in Oklahoma and Kansas and $70 million.
51
Although he believed himself to be protecting the Indians by keeping them apart from whites, he also wanted to open the best farmland to white settlers and impose state law so as to drive out the Indians. While the Trail of Tears occurred after Jackson had left office, he surely bears great responsibility for the tragedy, and he used the power of the Presidency to bring it about.

THE BANK WAR

jACKSON'S USE OF executive powers domestically surpassed his actions in foreign affairs. He placed the constitutional powers of the office -- removal, the veto, and the power to execute and interpret the law -- in the service of a new constitutional theory of the office. For Jackson, the Presidency did not just rest on the same plateau with the other branches. It was the
primus inter pares
. Jackson conceptualized the Presidency as the direct representative of the American people, the only official in the federal government elected by the majority. He proceeded to exercise a broad interpretation of his constitutional powers, sometimes in conflict with Congress and the courts, because he believed he was promoting the wishes of the people. Jackson's vision came through in the symbolic -- as in his first inaugural, when he opened the White House to any and all, who then proceeded to storm through the building destroying furniture, carpets, and fine china
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-- and the real, as when he took his reelection as a mandate to destroy the Bank of the United States.

At first, Jackson resorted to his constitutional authority just to keep his administration from imploding. As he entered office, Jackson made the basic mistake of appointing cabinet members who turned out to be at odds with one another -- a mistake made by Washington, too. This problem was compounded by the presence of Vice President Calhoun, who had accused an unsuspecting Jackson of waging an illegal war in Florida while in the Monroe administration and who would become one of Jackson's fiercest political opponents. Dissension began, however, not over policy but a marriage. Tennessee Senator and Jackson friend John Eaton, the new Secretary of War, had allegedly carried on an affair with Peggy Timberlake, the daughter of his landlord.
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Not only was Ms. Timberlake much younger than the Senator, but she was married to a Navy purser who then allegedly killed himself because of her behavior.
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Eaton then married Timberlake, setting off a social scandal that rocked the administration. The wives of administration officials, such as Vice President Calhoun and the Secretaries of the Treasury and Navy, as well as the Attorney General and Jackson's close friends and aides openly snubbed the new Mrs. Eaton at social events.
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Her supporters included Secretary of State Van Buren, the Postmaster General, and two of Jackson's presidential advisors.
56

As Donald Cole has observed, the issue dominated Jackson's first years in office and led to Calhoun's downfall.
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Because of the social division, the members of Jackson's cabinet were barely on speaking terms, and the first term ground to a halt. Jackson, who took the insults to heart and personally conducted research in Mrs. Eaton's defense, came to see the whole affair as an effort by Calhoun to succeed him in office.
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By the end of 1829, Jackson switched his favor from Calhoun to Van Buren, who was known as "the Little Magician" for his political and organizational skills in New York.
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Jackson found his solution in his power of removal. He believed that his popular election gave him the right, in the name of reform, to replace those "unfaithful or incompetent hands" who held power, as he said in his First Inaugural Address, with officers of "diligence and talent" who would be promoted based on their "integrity and zeal."
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He also believed that the concentration of power in the hands of long-serving public officials threatened American liberty,
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and praised "rotation" in office as "a leading principle of the republican creed."
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For Jackson, "as few impediments as possible should exist to the free operation of the public will."
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In his first year in office, Jackson moved quickly to put his words into effect. Of about 11,000 federal officials, Jackson removed somewhere between 10 and 20 percent in his first year.
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Of those directly appointed by the President, he removed fully 45 percent, more than all of his predecessors combined.
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Jackson believed he should have a bureaucracy that would support his program, but historians ever since have blamed him for introducing the "spoils system" into American politics and ruining a relatively honest and efficient federal bureaucracy.
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Removal became the answer to the Eaton affair. By 1831, Jackson obtained documents showing that Calhoun had attacked him over the invasion of Florida.
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In a letter to Calhoun, accusing him of "endeavoring to destroy" his reputation, Jackson wrote "in the language of Caesar,
Et tu Brute,
" and declared that "[n]o further communication" between the two would be necessary.
68
Calhoun published his correspondence with the President on the Seminole Wars in an effort to show that others -- particularly Van Buren -- were attempting to destroy him.
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Jackson and the nation were shocked by the public airing of political dirty laundry. He could not remove the Vice President, but he could fire his quarrelsome cabinet
en masse
-- especially its Calhoun supporters. The first President to demand the resignation of his entire cabinet at once,
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Jackson made clear that he would use his power of removal vigorously, and that cabinet members had no constitutional right to autonomy. It struck the nation like a thunderclap, but it allowed Jackson to end the political infighting within his administration and to refocus on his policy goals. Jackson's control over the executive branch and the party would become even clearer when he decided in 1832 to replace Calhoun on the Democratic ticket with Van Buren.

The firings would provide the space for Roger Taney -- who would play a central part in Jackson's next great constitutional fight -- to enter the cabinet as Attorney General. It is difficult today to understand why the Bank of the United States would spark a titanic political fight. Who would oppose the idea of keeping the money supply and interest rates out of the hands of politicians? Yet, Jackson made a point of mentioning the Bank at the end of his First Annual Message to Congress. He observed that "[b]oth the constitutionality and the expediency of the law creating this bank are well questioned by a large portion of our fellow-citizens," and he declared that "it has failed in the great end of establishing a uniform and sound currency."
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Jackson recommended that if Congress were to keep the Bank, significant changes in its charter would be necessary.
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Jackson disliked the Bank of the United States, and banks in general, because they were thought to be responsible for economic overexpansion and the resulting crashes, the source of corruption by a wealthy elite, and the generator of unreliable paper money and easy credit. "The connection of banks and government was fraught with financial and political peril, especially in a young republic whose citizens craved riches and yet resented every hint of aristocratic privilege," writes a historian of the period. "Banking was poorly understood, not yet professionalized, and its amateur practitioners sometimes wreaked disaster on their customers."
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