Crisis and Command: A History of Executive Power from George Washington to George W. Bush (25 page)

Jackson's veto was greeted with howls of protest. Biddle wrote to Clay that Jackson was a demagogue calling for anarchy.
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Daniel Webster told the Senate the President was grabbing for "despotic power."
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"[A]lthough Congress may have passed a law, and although the Supreme Court may have pronounced it constitutional," Webster said, "yet it is, nevertheless, no law at all, if he, in his good pleasure, sees fit to deny it effect; in other words, to repeal and annul it."
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Webster foresaw that Jackson's example would lead to today's presidential influence over legislation. His veto message "claims for the President, not the power of approval, but the primary power, the power of originating laws."
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Clay followed with the claim that the veto was reserved for extraordinary moments when Congress had acted rashly.
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Now, Clay observed, the President's veto had become a threat used to influence legislation, which was "hardly reconcilable with the genius of representative government."
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Jackson obviously aimed his message over the heads of Congress to the American people, and it was reproduced in newspapers and pamphlets by the tens of thousands, some at the expense of Biddle, who thought the arguments so specious that they made for good propaganda. More importantly, with the presidential elections approaching, Jackson was asking the people to decide the Bank issue by voting for him. As Remini writes, "[N]ever before had a chief executive taken a strong stand on an important issue, couched his position in provocative language, and challenged the American people to do something about it if they did not approve."
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Jackson transformed the presidential election into a plebiscite; victory in the 1832 election would give the President a popular mandate to pursue the destruction of the Bank.

Jefferson, too, had turned the election of 1800 into a referendum, but it was not so much on a single issue as it was a struggle between the Federalists and Republicans for power. The first nominating conventions, held by the two parties in 1832, strengthened the link between popular wishes and his reelection. There was no mistake about the issues involved--Jackson's exercise of his constitutional powers stayed at the center of the election. National Republicans, who nominated Clay and counted Webster and Calhoun among their leaders, argued that Jackson had seized unconstitutional powers and was bent on tyranny.
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A National Republican newspaper, for example, accused Jackson of annulling "two houses of Congress, the Supreme Court, and the Constitution of the United States."
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Another asked, regarding Jackson and his veto, "Could it have any effect but to swell the power and augment the influence of the Executive ...?"
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A third declared that the Constitution was "a dead letter, and the will of a DICTATOR is the Supreme Law!"
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Democrats responded that Jackson represented the wishes of the common man against the concentrated power of the Bank and a wealthy aristocracy.
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They had the luck to fight against a Bank determined to make itself a bigger target by interfering in the election. Biddle paid to reprint Webster's and Clay's speeches against the veto, and poured roughly $100,000 into the campaign.
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Democrats used this as ammunition against Clay, claiming he fronted for a Bank that was trying to buy the election and bribe public officials.
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Rather than run from Jackson's use of presidential power, Democrats welcomed the focus on their leader and used mass rallies, parades, and campaign events to make him the center of the campaign.
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Jackson won reelection overwhelmingly. He gained 219 electoral votes to Clay's 49, with a third-party candidate receiving seven.
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Jackson won all of the South and the West except for Clay's home state of Kentucky and South Carolina, which gave its votes to someone who was not running. He lost only four other states, all in the Northeast. He won about 55 percent of the popular vote, with 687,502 in his favor against 530,189 for his opponents, only a slight decline from his percentage of the vote in the first election.
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The election vindicated Jackson's decision to gamble on his opposition to the Bank. It transformed the nature of the Presidency by grounding his political support on the majority, rather than the states, the Electoral College, or his political party. Jackson would use this broad base to claim that his views on policy were those of the American people, and to lay an equal, if not superior, claim to that of Congress for the mantle of representative of the democracy.

The second term began with a renewed offensive against the Bank. Old Hickory was not going to wait four years for "the Monster" to go quietly. In spring 1833, Jackson decided to transfer all federal funds from the Second Bank to state banks.
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Withdrawal would drain about half of the deposits from the Bank, effectively crippling it. Jackson believed that this would prevent Biddle from pushing a recharter bill through Congress.
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It also placed the general in his favorite position, that of dictating events. On March 19, Jackson read a paper to his cabinet, laying out his policy toward the Bank.
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He would not suffer its recharter and he would manage federal funds through state banks or possibly a new federal bank limited to doing business only in Washington, D.C. (which would not run afoul of Jackson's constitutional objections).
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With only Taney in agreement, the rest of the cabinet thought it best to keep the government's business with the Bank.
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Treasury Secretary Louis McLane argued in a lengthy letter to Jackson against withdrawal because of the effect on the economy and worries about mismanagement by the state banks.
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The 1816 statute establishing the Second Bank authorized only the Treasury Secretary to withdraw federal funds from the Bank and required him to explain his reasons to Congress.
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Congress opposed any withdrawal. Calhoun, Clay, and Webster continued to dominate in the Senate, where the Jacksonians had failed to win a majority in the 1832 elections. Even the Democratic House overwhelmingly declared that federal deposits were safe in the Bank.
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The President responded by drawing on his full constitutional powers to get the Bank out of the business of holding the government's money, and sparked a political and constitutional controversy of a kind that has rarely been repeated in the nation's history. Jackson first rearranged his cabinet to get McLane out of Treasury -- he was moved to State -- replacing him with William Duane, a known opponent of the Bank.
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Once in office, however, Duane got cold feet and delayed any decision.
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Jackson took the extraordinary steps of convening a cabinet meeting on September 17, 1833, to notify them of his decision to withdraw the funds, and the next day had Taney read the cabinet a lengthy "expose" of the Bank in his name.
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Jackson blamed the Bank for making the recharter an issue in the presidential election and trying to use its financial influence to defeat him. He alleged that it controlled major newspapers, delayed the retirement of the national debt, and charged the government unjustly high fees. Jackson interpreted "his reelection as a decision of the people against the bank," which he called "an irresponsible power which has attempted to control the Government,"
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and declared that "the people have sustained the President, notwithstanding the array of influence and power which was brought to bear upon him."
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The issue was whether the President or the Bank would govern.

Duane resisted and asked for a delay, but Jackson had the government announce the withdrawal on September 20.
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Duane refused to carry out the order. Jackson informed him that as a member of the executive branch, Duane worked for him. "A secretary, sir,... is merely an executive agent, a subordinate, and you may say so in self-defense," the President told Duane.
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Duane claimed that Congress had given him, not the President, the discretion to decide where to deposit federal funds, and asked for another delay. "Not a day," Jackson exclaimed, "not an hour.
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Jackson fired Duane in a letter on September 23 and replaced him with Taney. "I surely caught a tarter in disguise," Jackson explained to Van Buren, "but I have got rid of him."
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Taney began carrying out the withdrawal immediately. Jackson had given form to the ideas of Washington and Jefferson. As Chief Executive, Jackson believed it was his constitutional right to decide how to carry out federal law, such as the statute on the deposit of federal funds. In order to execute the law, he had to control subordinate officials in the executive branch. If they did not follow his constitutional views and policy priorities, he exercised his constitutional authority of removal and replaced officials who refused to follow his orders.

Biddle fired back with everything he had. His Bank began a rapid restriction on credit and called in loans to state banks.
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State banks responded by calling in their own loans, producing a contraction of lending throughout the national economy.
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Shrinking credit sparked a financial panic, which Biddle hoped would pressure Congress to recharter the bank and override Jackson.
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Opposition took political form, too. Critics of Jackson coalesced in the winter of 1833 into a new political party, the Whigs, which took as its main platform (as suggested by its name) opposition to Jackson's expansion of executive power.
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As head of the new party, Clay convinced the Senate to launch an investigation into the withdrawal of the deposits and issued a demand for an official copy of the September 18 expose widely reprinted in the papers.
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Having used his powers to veto, to fire officials, and to interpret and enforce the law, Jackson next turned to executive privilege. In a message to the Senate on December 12, 1833, Jackson wrote that "[t]he executive is a coordinate and independent branch of the Government equally with the Senate."
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He had "yet to learn under what constitutional authority" the Senate could "require of me an account of any communication, either verbally or in writing, made to the heads of Departments acting as a Cabinet council."
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If he had to produce the document, he might as well "be required to detail to the Senate the free and private conversations I have held with those officers on any subject relating to their duties and my own."
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Jackson saw no reason why the document was needed for the performance of any legislative duty, and he believed production would interfere with the proper operation of his own branch. Although Jackson did not use the words "executive privilege," his explanation followed the same constitutional basis set out by Washington's message on the Jay Treaty and Jefferson's refusal to obey the Burr subpoena.

Clay responded with an idea that would make an encore appearance during the Clinton years -- censuring the President. Although the Jacksonians held a majority of the House, taking impeachment out of the equation, the Whigs still had sufficient support in the Senate. Clay chose to make Jackson's usurpation of constitutional authority the grounds for censure. In his speech on the resolution, Clay exclaimed that "[w]e are... in the midst of a revolution," because of the veto and the removal of the funds, which was "tending towards a total change of the pure republican character of the Government, and the concentration of all power in the hands of one man."
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The Great Compromiser repudiated Jackson's claim that the President represented the wishes of the democracy. "I am surprised and alarmed at the new source of executive power which is found in the result of a presidential election."
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The President's sole authority came from the Constitution and the laws, not "loose opinions, in virtue of the election," which allegedly "incorporate themselves with the constitution, and afterwards are to be regarded and expounded as parts of the instrument!"
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Clay urged that no one should doubt that Jackson had violated those duties entrusted to him by the laws -- he had vetoed a bill on grounds not permitted by constitutional practice, and he had seized from the Secretary of the Treasury the duties entrusted to him by Congress. "The premonitory symptoms of despotism are upon us," Clay declared, "and if Congress do[es] not apply an instantaneous and effective remedy, the fatal collapse will soon come on, and we shall die -- ignobly die -- base, mean, and abject slaves; the scorn and contempt of mankind; unpitied, unwept, unmourned!"
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Clay's rhetoric may go unmatched in the history of attacks on the Presidency, and it had a profound effect upon the Senate. Webster and Calhoun followed with speeches that stretched for days.
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The Senate eventually responded, enacting a resolution, without any legal effect, rejecting Taney's report of the reasons for withdrawal of the funds by 28-18. On March 28, 1834, it passed the censure of Jackson by 26-20.
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Jackson cared above all about his honor, but he did not shrink away nor seek compromise. A few days after the censure, he responded with his "Protest," which remains one of the most forceful declarations of presidential power in American history.
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Jackson claimed the right as Chief Executive to use his powers to attack threats to the health of the nation. "So glaring were the abuses and corruptions of the bank," Jackson wrote, "so palpable its design by its money and power to control the Government and change its character, that I deemed it the imperative duty of the Executive authority" to check the bank.
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He attacked the Senate for acting without power because it had neither enacted legislation nor initiated impeachment proceedings; the Constitution spoke nowhere of censure. Censure was no less than an effort by the Senate to interfere with, and even seize, his executive authority. Each branch was equal to and independent of the other and could not interfere with the allocation of powers by the Constitution.