Ok, so earlier today I posted two articles back to back for a reason. They are (1) a light LA Times commentary on Andrew Jackson (okay dude or Hitler?); and (2) a dense law review article on the Article III judgment power by William Baude. They’re connected, in my opinion, although I doubt it is apparent to anyone but me.
Here it goes:
Andrew Jackson, as American Indians know all too well, was involved in one of the greatest challenges to the Supreme Court’s authority — the aftermath of Worcester v. Georgia. That’s the case where the Court held that Georgia’s laws had no force in Indian Country because they conflicted with the Treaty of Hopewell, rendered “supreme” federal law by the Supremacy Clause. Once the Court reached that holding, President Jackson supposedly said that he wouldn’t enforce that holding.
Well, so what? It wasn’t his duty to enforce it because it was the Court’s Judgment Power (borrowing Baule’s phrase) at stake, not the Executive branch’s power. See, the question in Worcester was whether or not Georgia had authority to prosecute Indian Country crimes. The Treaty of Hopewell said not, while the State of Georgia said yes and went ahead and prosecuted Worcester.
The Supreme Court’s Judgment Power was severely tested there in that moment, when the Court issued the opinion, went into recess for the rest of the year (1832, an election year), and the GA legislature thumbed its nose at the Court.
Here’s the interesting thing: Pres. Jackson had no interest in assisting Indians (whom he was trying to force West), although history demonstrates that he leaned heavily on the Governor of Georgia and made him comply with the Court’s opinion in Worcester. As a result, the Court never had to issue a mandate requiring someone to make Georgia follow the law when it came back from its recess in January 1833. Jackson was an Indian fighter (and as we’ll see a states’ rights kinda guy), so why did he help out the Cherokees?
The LA Times opinion writer (who doesn’t write about this specific incident, probably because it’s a little unknown) would chalk this up on Jackson’s side — the same with Jackson’s biographer Remini. “See, he wasn’t so bad. He made Georgia comply with the Court’s order. He was trying to save the Indians from extinction.” Of course, that last bit of doggerel was one of arguments in favor of Indian removal in the first place, something along the lines of “Move west to avoid being killed, or we’ll kill you.”
But as Justice Breyer has pointed out a few times (see my paper on this), Jackson was no Indian lover. And he sure was no Supreme Court lover, either. In 1832 (did I mention it was an election year?), Jackson was running for re-election on the pro states’ rights, anti federal government platform. And he won a big victory, trumpeting states’ rights, down with the federal government, and so on.
But he got burned when the states in the South (esp. the Carolinas and Georgia) started refusing to follow federal law and pay their tariffs, etc. As President, it was Jackson’s duty to enforce these laws, but as a politician, he railed against them. He had himself a conundrum.
Which brings us to Mr. Baude’s paper? Where the heck is Andrew Jackson in this paper? There’s two reasons to include him: (1) He hated federal laws that infringed on states’ rights — and he hated the Supreme Court; and (2) He opposed a Supreme Court decision (Worcester). Of course, he didn’t follow through on either of his positions (what a chicken!), possibly delaying the American Civil War for a few decades.
To be fair, this isn’t the same as Ex parte Merryman, because Jackson didn’t follow through with his threats. But what if he did?
Mr. Baude’s paper suggests that a President can decline to enforce a S. Ct. order if the Court lacked jurisdiction. Well, interestingly enough, the State of Georgia made that argument in Worcester (and in Cherokee Nation v. Georgia) by not even showing up to oral argument before the Court or submitting briefs.
So my question — would A. Jackson have been within his rights to (hypothetically) ignore a mandate from the Court to enforce its decision in Worcester because he believed the Court didn’t have jurisdiction?
I say no, even assuming that the law of 1832 was that Georgia was right about its robust sovereign immunity. But that’s me.
Turtle Talk 