Listen, MAGA: Presidents Rarely Defy the Courts
Since becoming president again, Donald Trump has suffered a series of losses in various courts. His responses are unique in U.S. history. He has berated judges and threatened the court system rather than offering a counterargument or changing his policies to comply with federal court orders. He has bitterly complained that some judges he appointed have not voted in his favor, as though federal judges and Supreme Court Justices are apprentices who do his bidding. The 47th president’s supporters have joined him in these attacks. Federal judges have expressed enormous concern and frustration at the Trump administration’s refusal to comply with their decisions or orders. At best, the president has been coy about whether he would comply with adverse rulings, even from the Supreme Court, which, sooner or later, may order him to act or stop acting. The question is, will he and his administration obey? The administration will likely argue that the president does not have to obey Supreme Court decisions. Instead, the president or his team will likely assert that he is following in the footsteps of other presidents. This is emphatically not true.
Presidents Rarely Defy Courts
The most famous and inaccurate historical myths about presidents and the Supreme Court involve President Andrew Jackson and Chief Justice John Marshall. One involves Jackson’s veto of the Second Bank of the United States recharter, and the second involves the Cherokee Nation in Georgia. Despite claims by popular historians and many textbooks, Jackson did not defy the Supreme Court or refuse to enforce a court order in either case.
Even before he first ran for president in 1824, Andrew Jackson hated Marshall’s decision in McCulloch v. Maryland (1819), upholding the constitutionality of the Second Bank of the United States. Jackson hated the National Bank. He saw it as a symbol of eastern economic and political power, oppressing western farmers and southwestern cotton planters (like himself), controlling local banks (including those where Jackson owned stock), and limiting land speculation, which favored large landowners (including Jackson).
In 1824, Jackson lost the presidential election despite having the most electoral votes. (It is unclear if he also won the popular vote because the figures are unreliable, and five states, including the largest, New York, did not have a popular vote.) With no electoral majority, the election went to the House of Representatives, which chose John Quincy Adams, a Marshall ally and a strong supporter of the Bank. In 1828, Jackson decisively won the presidential election and implemented policies to crush the Bank. He withdrew U.S. deposits from it, placing them in favored state institutions known as “pet banks.” In 1832, on the eve of successfully running for a second term, Jackson vetoed a bill rechartering the Bank. He argued that the Bank was unconstitutional and any recharter was a bad policy. Jackson did not deny that the Supreme Court had the power to rule on the constitutionality of the Bank, but he argued correctly that, as president, he was entitled to veto the recharter. As president, Jackson had no power to close the Bank or take away its charter unilaterally, but the Court could not require him to sign a law rechartering the Bank. Jackson destroyed the Bank by vetoing the bill, but despite what some people think, he did not do this in defiance of the Supreme Court.
His other alleged confrontation with the Supreme Court and Chief Justice Marshall involved the missionary Samuel Worcester. Georgia authorities arrested Reverend Worcester for living with and preaching to the Cherokee (with their permission) in violation of a state law “to prevent white persons from residing within that part of the chartered limits of Georgia, occupied by the Cherokee Indians.”
The law was part of Georgia’s attempts to isolate the Cherokee and force them to leave the state. Marshall’s ruling in Worcester v. Georgia was narrow—that the Cherokee lived on land set aside by a treaty with the United States and that Georgia’s law violated this federal law and the Constitution’s supremacy clause. Thus, the arrest and incarceration of Worcester were unconstitutional. In 1864, long after Jackson died, Horace Greeley, the abolitionist editor of the New York Tribune, quoted Jackson as saying, “John Marshall has made his decision, now let him enforce it.” However, there is no evidence that Jackson ever said that. It is also implausible that in 1832, the 21-year-old Greeley, a typesetter and printer (not yet a journalist), would have encountered President Jackson.
More importantly, there was nothing for the president to defy. Marshall’s decision was directed at a Georgia judge and did not call for any action by the president. Georgia ignored Marshall’s decision, but neither the Court nor Worcester’s lawyers followed up. Ironically, in 1833, Jackson persuaded Georgia’s governor to commute Worcester’s sentence, and the missionary moved to Oklahoma. Thus, no one ever enforced Marshall’s decision, and President Jackson was central to securing Worcester’s release from jail. But the Court did not ask (or expect) Jackson to enforce its order, so he did not refuse to do so.
Jackson had no love for Chief Justice Marshall, and as president, he set in motion the removal of the Cherokee from Georgia. However, the removal—the horrendous and lethal Trail of Tears—took place after Jackson was no longer president. A lawyer and former state superior court justice, Jackson believed in the rule of law and never openly defied the Supreme Court.
Numerous books have quoted him since 1864, when Greeley published his contrived statement attributed to Jackson. However, every serious scholar of the Indian removal and modern biographers of Jackson have pointed out that Jackson never said this. Nevertheless, if President Trump refuses to obey a Supreme Court order, we can anticipate someone in his administration or the president himself repeating the “fake” Jackson quotation.
Other examples of presidential responses to unfavorable Court decisions illustrate the long history of presidents obeying the Courts.
Jeffersonian Compliance
Thomas Jefferson had a stormy relationship with his cousin, Chief Justice John Marshall. In his first term, Jefferson’s allies in the House of Representatives impeached Justice Samuel Chase, essentially for upholding the convictions of supporters of Jefferson under the Sedition Act of 1798. This was the first step in Jefferson’s plan to remove Marshall and remake the Court in his own image, and with 25 allies in the Senate and only nine Federalists, he seemed to have the means. But Jefferson’s Senate allies took seriously their oath “to support this Constitution.” In four articles of impeachment against Chase, a majority of them voted for acquittal. In the other four, the Jeffersonians never came close to the two-thirds majority required to convict and remove Chase. After Chase’s acquittal, Jefferson gave up on trying to remove judges he did not like.
In his second term, Jefferson had his former vice president, Aaron Burr, indicted for treason for an alleged conspiracy involving Spain and land acquired from France through the Louisiana Purchase. Chief Justice Marshall presided over the trial because, at the time, members of the Court rode circuit and acted as trial judges. In this capacity, Marshall subpoenaed Jefferson for some documents necessary for the defense. With great anger, Jefferson sent much of what Marshall had asked for but redacted some of the text. What Jefferson sent was sufficient for the trial to move forward. Jefferson, a practicing lawyer before and after the Revolution, accepted the rule of law and did not refuse Chief Justice Marshall’s order, even though the subpoena technically came from a trial court—the equivalent of today’s U.S. District Courts, not the Supreme Court.
Jefferson was furious when Marshall ultimately ruled that whatever Burr had done, it was not treason, and Burr was acquitted. Jefferson contemplated pushing Congressional allies to impeach Marshall and pass legislation allowing for the removal of judges without impeachment, but neither went anywhere. Ultimately, Jefferson was left to seethe and complain privately to his friends and allies, but he refrained from attacking Marshall or the Court.
Jefferson was egotistical, thin-skinned, and happy to use the courts to vent his grievances and pressure his opponents, antagonists, and those he might have called “Jefferson-haters.” Thus, ignoring the First Amendment, he urged governors and his U.S. attorneys to prosecute journalists who criticized him. When his abuse of the legal system failed to send newspaper editors to jail, the author of the Virginia Statute for Religious Freedom and the primary author of the Declaration of Independence ultimately respected the rule of law. After the Burr acquittal, he did not seek to rearrest his former Vice President on some new charge, exile him, or deport him.
Modern presidents have also faced adverse Supreme Court decisions and complied with them.
At the outset of his presidency, Franklin D. Roosevelt lost a series of Supreme Court cases that devastated his New Deal legislative agenda. At the time, the nation was in its worst crisis since the Civil War, with the Great Depression impoverishing a third of the nation. But in the face of this crisis, FDR did not refuse to comply with the Supreme Court’s rulings. He famously proposed that Congress expand the Court, but the “court packing” proposal went nowhere, and he did not berate Congress for failing to support him. Instead, he returned to the drawing board as Congress crafted new laws, which the same Court now upheld.
During the Korean War, President Harry S. Truman ordered his Secretary of Commerce to take control of the nation’s steel industry when it appeared that a labor dispute would stop production. In Youngstown Sheet and Tube v. Sawyer (1952), the Court told the President he could not do this. Truman did not denounce the Court or defy it. He backed off.
Nixon Handed Over the Tapes
In 1971, President Richard M. Nixon urged the Supreme Court to allow for the suppression of the Pentagon Papers, which were embarrassing to the United States government. He lost in an extraordinary session of the Court. Despite hysterical claims that the publication of these documents would undermine national security (there is no evidence they did), the Nixon administration did not dispatch federal agents to shut down the newspapers, which continued to publish the trove of documents showing that successive administrations had lied about the American military effort in Southeast Asia. These publications embarrassed presidents and their administrations but did not threaten national security.
The Watergate trials did not directly involve President Nixon, but created a conflict between the Court and the President. The trials involved Nixon’s underlings, who had committed a number of criminal offenses. U.S. District Judge John J. Sirica presided over the trials and was a lifelong Republican whom President Dwight D. Eisenhower had nominated to the federal Court. Early in the case, the constitutional law expert, Professor Charles Alan Wright from Texas Law School, assured Sirica, “This President does not defy the law. He will comply in full with the orders of this Court.” However, when Sirica issued a subpoena ordering Nixon to turn over secret tapes to the trial court, the president initially refused and then only partially complied. His lawyer, criminal defense attorney James D. St. Clair, urged Sirica to quash the subpoena, asserting that “the President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”
When Sirica refused to quash the subpoena, St. Clair appealed to the Supreme Court, which unanimously upheld Judge Sirica’s order. Nixon then complied with the Supreme Court’s order, knowing that the tapes showed Nixon had committed a number of criminal offenses while in the White House. Sixteen days after he released the recordings, Nixon resigned from office. Even though he had broken numerous laws, he respected the Court.
Similarly, President Bill Clinton fought to avoid giving a deposition in a private lawsuit, part of a chain of events leading to his impeachment in the House and acquittal in the Senate. But when the Court ruled against him, he sat for the deposition, even though it embarrassed him.
Trump Is No Lincoln
If President Trump defies the Court, he may argue that he is Lincolnesque, incorrectly claiming that, like Lincoln, he can ignore a Supreme Court order. This would be a misuse of Lincoln’s history and a misunderstanding of the suspension of habeas corpus at the start of the Civil War. While Chief Justice Roger B. Taney denounced Lincoln’s suspension, the case never went to the Supreme Court, and neither Taney nor the Supreme Court ordered Lincoln to do anything.
At the beginning of the Civil War, Lincoln’s administration faced terrorism and sabotage, particularly in Maryland, a border state with strong Confederate sympathies. John Merryman, a slaveholding Maryland Confederate sympathizer, organized terrorists to destroy railroad tracks and bridges in Maryland to cut off Washington, D.C., from the rest of the nation. The Constitution authorizes the suspension of “the Writ of Habeas Corpus” to protect the “public Safety” during a “Rebellion or Invasion.” At the time, there was no FBI, Secret Service, or other federal police force to stop such terrorism. Congress was not in session because it usually met in December.
Thus, Lincoln suspended habeas corpus, and the Army arrested Merryman, throwing him in the brig at Fort McHenry in Baltimore Harbor. In May 1861, Chief Justice Taney, acting as the circuit court justice, issued a writ of habeas corpus to bring Merryman to his private chambers. The commander of Fort McHenry, General George Cadwalader, himself a lawyer, requested a delay in any hearing so that he could consult with counsel and the government. Instead, Taney issued an opinion without scheduling a formal proceeding or hearing arguments from Cadwalader or the United States government.
In a written opinion, Taney stated that only Congress could suspend habeas corpus, although the constitutional clause was opaque on this issue. He did not explain how Congress could act when it was not in session, how Congress might return to Washington for a session if Merryman was allowed to destroy bridges and tracks, or whether the president, as commander-in-chief, could use the military to restore order if the Confederate army, sitting in Virginia, successfully captured the nation’s capital. Taney’s hostility to the Lincoln administration led him to assert that “Even if the privilege of the writ of habeas corpus were suspended by act of congress,” Merryman “could not be detained in prison” but was entitled “to a speedy and public trial.” In other words, Taney argued that the government would lack any power to arrest terrorists like Merryman and stop their sabotage.
Having berated the administration, Taney did not actually order Lincoln or the administration to take any particular action, including releasing Merryman. Taney’s opinion was not that of the U.S. Supreme Court, which never heard the case. Nor could it be seen as an official court proceeding since there was no hearing or trial with briefs and lawyers’ arguments. Instead, Taney ordered that “all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland” and directed “the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, fulfilling his constitutional obligation to ‘take care that the laws be faithfully executed,’ to determine what measures he will take to cause the civil process of the United States to be respected and enforced.” In other words, Taney did not order General Cadwalader or the president to take any action. Thus, Lincoln did not respond to Taney’s one-man crusade against saving the Union, and the Supreme Court said nothing. Lincoln did not refuse an order from the Supreme Court because he never received one.
A month later, on July 4, 1861, Congress met in a special session, passed laws to support military action against the rebellion, and adjourned in August. Lincoln mentioned the Merryman case in his address to Congress, but Congress ignored the issue. However, Congress did not pass legislation on habeas corpus or even debate the issue. In 1863, Congress passed a law allowing Lincoln to suspend habeas corpus in much of the nation.
While President Trump might see this as a precedent for him to ignore the Supreme Court, the circumstances are hardly similar. We are not at war, there has been no rebellion, and no foreign or Confederate army has invaded the nation, ready to capture Washington, D.C. Taney’s written opinion was not based on a traditional legal proceeding with briefs and formal arguments. Nor was it a Supreme Court opinion or even one from a trial court. Finally, neither the Supreme Court nor any other federal court ordered Lincoln to act. He did not defy a court order because there was none.
Hopefully, in the coming months, the 47th president will learn from history that the oath he took—“to preserve, protect and defend the Constitution of the United States”—means that he must not only comply with the decisions of our Courts but do so gracefully, without threats of retribution or denunciations of our jurists. That is part of his oath to “faithfully execute the Office of President of the United States.” Then, he would act as Jefferson, Jackson, Roosevelt, Truman, Nixon, Clinton, Bush, and Lincoln did.
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