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Presidential Lawlessness & No, It’s Not Trump

Updated: Aug 13, 2021

Wanted poster of Abraham Lincoln

With impeachment behind us, what is ahead? The answer is not divined in impeachments of Andrew Johnson, Richard Nixon nor Bill Clinton, but rather by examining two cases when Presidents act above the law.

President Jackson Defies Supreme Court

In 1832 President Andrew Jackson was defiant at a U.S. Supreme Court ruling that in effect protected the Cherokee peoples’ rights to stay in their homeland in Georgia. Georgia was enacting laws that exerted authority over the Cherokee nation, thereby making Native American self-governance impossible. One law required Whites to obtain a license to live in Native American lands.

Portrait of President Andrew Jackson
President Andrew Jackson

Missionary Samuel Worcester lived among the Cherokee, but did not comply with the state law. Georgia courts convicted and imprisoned him. The Cherokees chose not the warpath, but rather the American judicial system for redress.

Worcester v. Georgia went before Chief Justice John Marshall’s Supreme Court, which ruled that state laws could not govern Native American nations. Consequently, Worcester had to be released. Marshall’s court also held that the Cherokee had a right to their native lands.

Jackson resisted. "John Marshall has made his decision, now let him enforce it," said Jackson. Although Jackson’s words may be apocryphal, his anti-Native American views are consistent with the sentiment.

Eventually, Jackson relented and instructed Georgia to release Worcester, but did nothing to respect Cherokee sovereignty over native lands. In the end, the Cherokee were forced down a Trail of Tears to Indian Territory in Oklahoma.

Painting of Trail of Tears

There were no grasshopper emojis to tweet in the 1800s, but Ralph Waldo Emerson said, "it is the chirping of grasshoppers beside the immortal question whether justice shall be done by the race of civilized, to the race of savage man. … Will the American Government steal? Will it lie? Will it kill?" Prophetic.

President Lincoln Defies Congress

In another case, Abraham Lincoln usurped Congressional power and suspended the fundamental right of habeas corpus during the Civil War. In 1861, Lincoln mobilizing troops through Maryland to defend Washington, DC. State and local officials supported the Union, but opposed troop movements through their state, fearing provocation of the Confederacy. U.S. military personnel arrested Maryland militia Lieutenant John Merryman for destroying bridges used by U.S. troops. He was held at Ft. McHenry without any formal charges (shades of Guantanamo).

U.S. Chief Justice Roger B. Taney issued a writ of habeas corpus to military officials, who refused to produce Merryman before the court, citing the Presidential order. In Ex parte Merryman, Tandy ruled that such suspension was the purview of the Congress, not the President, and therefore unconstitutional.

Lincoln suggested to Congress that U.S. Constitution was not a suicide pack. However, Congress declined to grant the President carte blanc approval for suspending habeas corpus, but did approve previous suspensions.

Then, oops Britney, Lincoln did it again. He had Congressmen, state legislators, city councilmen, federal judges, journalists and a publisher held without legal protections. Eventually Congress enacted the Habeas Corpus Suspension Act in 1863 to resolve the issue.

Trump Defies American Public

In both cases there was no Congressional sanction, but rather acquiescence because most Americans supported relocating Indians and preserving the Union. Despite Lincoln defying Congress and Jackson the Supreme Court, the sky didn’t fall. The Union persevered.

This is distinguished from Trump because: 1) Lincoln and Jackson were executing public policy -- not subverting it for personal or political reasons; and 2) most Americans doubt Trump’s Ukrainian motives.

Early Voting art in red, white and blue

Well to note that suspending habeas corpus was an issue that led to Lincoln’s party losing the Congressional mid-term election in 1862. It’s now early voting. Will history repeat itself? You can have a hand in writing this chapter on March 3 and November 10.

Edited. Original commentary appeared in Rio Grande Guardian, February 23, 2020.

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