I was reading this article and came across these lines:
This made me think of the accusations towards courts of “activist” judges and “judicial fiats”. Which then went on to the thought, can a President/Governor (etc) make executive fiats? Can they ignore laws, Supreme Court decisions, and act against the laws?
I can think of something kind of similar when Andrew Jackson said about a supreme court ruling, “Mr. Marshall has made his decision, now let him enforce it.” (But I don’t know if Jackson ever did anything against the decision).
Most Presidents are “activists”. It’s the nature of the job - who’d go to that much trouble to seek the office if they didn’t want to use it?
Lincoln was probably the most activist President. He often took actions that other people thought were questionable or even unconstitutional.
As for legality, there’s a lot of gray areas. What an activist President can do is set policy in an area where the legislative power of Congress and the judicial review of the courts have not yet entered. Then if the results are accepted by the public, Congress and the courts will usually follow.
Jackson’s comments arose in response to the Supreme Court decision in Worcester v. Georgia, which found that state governments had no jurisdiction over Indian tribes living within their midst. The state of Georgia, at the time, was determined to evict the Cherokee Nation because white prospectors had discovered gold on their land.
Jackson’s comment about Marshall’s inability to enforce the decision was at least accurate. Short of sending in a federal army and provoking Civil War, there was nothing that Jackson, Marshall, or anybody else could have done to stop Georgia. Jackson had his hands full at the time trying to collect tariffs in South Carolina–a much simpler task than trying to defend Indian land against white interlopers.
However, Jackson did more than simply stand by and watch Georgians harass the Cherokees. He made sure that the federal government gave them the final push. The infamous Treaty of New Echota required the Cherokees to cede their Georgia land in return for land in Oklahoma, with the “expense of removal to be paid by the United States”.
The federal government was not exactly generous in providing “expenses of removal”, and the Cherokees were confined in disease-ridden camps and then force-marched 1,000 miles west under miserable conditions in the winter of 1838-39. One quarter of the Cherokee Nation died on the “Trail of Tears”. (The actual physical removal, it should be noted, took place during the Van Buren administration.)
So Jackson was not exactly acting in defiance of the law, but rather taking advantage of Georgia’s defiance of the law to inflict further abuse upon people he didn’t like. That was plenty “activist” enough, I suppose.
I think the claim that he just didn’t like Cherkees has been overplayed and is likely inaccurate. He had Cherokee relatives and I think he viewed relocation as the preferable alternative to widespread massacre and war between Georiga, it’s settlers, and the Cherokee nation. In retrospect his decision and gambit was obviously a failed one, but I’m not sure that it was motivated by racism or hate.
“Presidential Activism” has been also at issue with the War Powers Act, following LBJ’s escalation of an “advisory mission” into a long, bloody, mismanaged war w/o any Congressional declaration of a State Of War. Not so much a matter of going against the laws/constitution as of pushing the envelope, as it were, on how far does the C-in-C role extend.
Then there was FDRoosevelt’s threat to “pack” the Supreme Court by increasing its size and appointing enough pro-New-Deal justices to create a majority. Again, not outside the law/constitution but stepping outside long-established “understandings”. Similarly his efforts to aid Britain, the USSR, China and their allies, and to expand the military, at a time when the majority of public opinion was against America entering WW2.
That’s true; it would be wrong to ascribe a Nazi-like hatred of Indians to Jackson. His attitude was more a mix of indifference, condescension, and lack of understanding. The results, alas, were disastrous for the victims.
Concerning Lincoln, his best known defiance of the law occurred in the case of ex parte Merryman, during which Lincoln refused to release political prisoners in Maryland in the face of an explicit order by the Supreme Court to do so. He provided the best known defense of “defiance of the law” in his July 1861 message to Congress: “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”
Jefferson was another “activist” President, waging war against the Barbary pirates without Congressional authorization and buying Louisiana from the French without any clear constitutional authority to do so.
The Emancipation Proclamation and the Legal Tender Acts were also major actions that many people argued were unconstitutional. And of course many southerners disagreed with Lincoln’s views on the perpetuality of the union.