by John Yoo
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.143 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,"144 and declared that "the people have sustained the President, notwithstanding the array of influence and power which was brought to bear upon him."145 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 20.146 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.147 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.148
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."149 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.150 State banks responded by calling in their own loans, producing a contraction of lending throughout the national economy.151 Shrinking credit sparked a financial panic, which Biddle hoped would pressure Congress to recharter the bank and override Jackson.152 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.153 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.154
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."155 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."156 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."157 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."158 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."159 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!"160 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!"161
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.162 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 26-20.163
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.164 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.165 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.
Jackson argued that he was entitled to use his constitutional authorities to defeat the threat to democracy posed by the Bank.166 He could order and, if necessary, fire subordinates such as Duane. The Constitution's grant of the executive power to the President, and his duty to execute the laws, made him "responsible for the entire action of the executive department."167 Therefore, "the power of appointing, overseeing, and controlling those who execute the laws -- a power in its nature executive -- should remain in his hands."168 If a subordinate would not obey the President's orders, the President had every constitutional right to fire the subordinate and replace him with someone who would. These subordinates included the Secretary of the Treasury, regardless of what duties Congress had delegated to him.
The third leg of Jackson's theory of the Presidency was to link his duty to protect and his constitutional power to enforce the law with his role as representative of the people. Jackson declared, not for the first nor last time: "The President is the direct representative of the American people."169 Through their selection of a President, the American people held the executive branch accountable. This required that Jackson have full control over every executive branch official and the enforcement of all federal law. Otherwise, there is "no direct responsibility to the people in that important
branch of this Government."170 If the Treasury Secretary could reject a presidential order, it would allow him to defy "the Chief Magistrate elected by the people and responsible to them."171 An independent Treasury Secretary, followed to its logical conclusion, "will be found effectually to destroy one coordinate department of the Government, to concentrate in the hands of the Senate the whole executive power, and to leave the President as powerless as he would be useless -- the shadow of authority after the substance had departed."172
Jackson effectively claimed a role not unlike that of the ancient Roman tribunes, implying that the President had a superior tie to the people. In perhaps the first example of a now common presidential practice, Jackson directed his message over the heads of Congress to the people. He claimed that he was only carrying out the wishes of democracy against the conspiracies of an aristocracy to hoard power. In this, Jackson went beyond the vision of the Presidency held by Washington and Jefferson. Washington thought of himself as a republicanized monarch, and Jefferson as a prime minister. The President remained independent of Congress, but the Presidency relied upon a symbiotic relationship with the legislature for progress.
Jackson's Protest was the Presidency's declaration of independence. Although each branch was independent of the other, the executive was no longer just an equal. He was superior in his direct ties to the American people. Rather than seek legislation from Congress, Jackson's Presidency would speak for the people and force Congress to cooperate with his agenda. The President, not Congress, would dictate the tempo of politics and the focus for legislation.
Whigs in the Senate understood what Jackson was about, and they reacted with anger. Webster argued that the President did not hold all of the executive power, did not enjoy a removal authority, and did not control the cabinet secretaries. But he reserved his strongest attack for the theory of a plebiscitary Presidency. Jackson believed his claims of presidential power were "enough for a limited, restrained, republican government! An undefined, undefinable, ideal responsibility to the public judgment!"173 "The Constitution," Webster declared, "nowhere calls him the representative of the American people; still less their direct representative."174 Why else, Webster asked, was the President chosen by the Electoral College rather than by direct ballot?175 If Jackson were right, Webster exclaimed, "then I say, Sir, that the government (I will not say the people) has already a master."176
Calhoun spoke even more strongly, exclaiming, "What effrontery" and "boldness of assertion" from Jackson.177 "Why, he never received a vote from the American people," but only from electors.178Calhoun predicted that Jackson would appeal to the people again to wage "hostilities" against the Senate.179Urging the Senate to repudiate the Protest, Clay again predicted the coming of dictatorship. Under Jackson, "everything concentrates in the president. He is the sole Executive; all other officers are his agents, and their duties are his duties."180 This claim, Clay declared, "is altogether a military idea, wholly incompatible with free government."181 The Senate voted 27-16 to reject Jackson's Protest, and then used its confirmation power over appointments to fight back.182 It refused to confirm Jackson's nominees to the Bank's board of directors and, to put the icing on the cake, refused to confirm Taney as Treasury Secretary.183
Jackson, however, would not be beaten. Do what they might, Biddle, the Great Triumvirate, and the Whig Party could not overcome the fact that they lacked the two-thirds majority to force a recharter or a return of the deposits over Jackson's veto. Jackson used his leadership of the Democratic Party to name anti-Bank men to important congressional positions and to focus state organizations on the war with the Bank. Biddle's decision to instigate a financial panic backfired and turned public opinion against him. In January 1834, Jackson terminated the Bank's role in paying federal pensions to Revolutionary War veterans.184 When Biddle refused to return the funds to the government, Jackson blamed the suspension of pensions on Biddle, a story the public was only too eager to believe.
By spring, the President's political work bore its fruit, with the governor, legislature, and two Senators from Pennsylvania -- the home state of the Bank -- publicly condemning Biddle and the Bank for the panic. Other state executives quickly followed suit. Led by Polk, the House passed a resolution against recharter and return of federal deposits, and launched an investigation into the Bank's role in causing the panic. Biddle made matters worse by refusing to testify or provide documents to the House investigation.
Within the year, Jackson's victory was complete: Democrats beat the Whigs badly in the 1834 midterm elections, his administration retired the entire federal debt (reducing the need for a federal bank) in January 1835, the Senate voted to remove the censure resolution from its books, and Roger Taney was confirmed as Chief Justice upon John Marshall's death in 1835.185 Jackson reveled in his victory. "I have obtained a glorious triumph," he wrote to a friend. The House's support "put to death, that mamouth [sic] of corruption and power, the Bank of the United States."186
There is a good case to be made that Jackson's campaign against the Bank contributed to the boom-and-bust swings of the American economy in the following decades. There is little doubt that a sophisticated market economy needs an independent central bank to prevent politicians from manipulating the money supply for political reasons. The problem for many developing economies is keeping politics out of the bank. The problem for Jackson, however, was to keep the Bank out of politics. He took on the Bank because it had become a renegade institution using its special economic position to interfere in political elections. Jackson's greatness did not come from destroying a crucial part of America's financial architecture, but in fighting an agency of the federal government that was trying to control the political process for its own benefit. It would have been impossible for Jackson to prevail had he not exercised his constitutional powers of the veto, removal, and law enforcement against the wishes of Congress.
THE TARIFF
JACKSON'S FINAL GREAT achievement again drew upon the power of his office to protect the Union. Early indications would not have placed Jackson in the camp of nationalists. Jackson had ended plenary federal control over Indian policy. In his veto of the Bank, as well as several improvements bills, Jackson adopted a limited view of federal powers that outdid even Jefferson in its devotion to strict construction. But when Jackson saw the rising threat of secession, he did not hesitate to stretch the powers of his office to preserve the Union.187
The threat came from South Carolina over national tariff rates. Like the national bank, the political importance of the tariff may be difficult to grasp today. The contemporary tariff is most noticeable for its absence -- the success of the American-supported GATT, NAFTA, and WTO agreements has rendered the tariff a rather trivial matter. In antebellum America, however, the tariff was an issue over which some were willing to die, and others to break up the Union.
Clay's economic program, the "American System," deployed the tariff to protect domestic manufactures and promote road and canal construction, while Southerners deeply opposed the Tariff of 1824, which enacted steep duties on manufactured imports.188 The tariff hit the South's economic interests hard; planters had to export raw material, primarily cotton, into the competitive world market, but had to purchase finished products in the home market. Some Southerners believed the Constitution prohibited taxation for purposes other than raising revenue and that one part of the nation -- the North -- could not benefit from taxes at the expense of another. In 1828, a bill that raised rates became known in the South as the "tariff of abominations" and sparked secessionist rallies in several Southern cities.189
South Carolinians rallied around the idea of "nullification." Developed by Calhoun, nullification maintained that the Constitution was only an agreement among the states, which retained their independent sovereignty.190 No single American people had created the Constitution as their governing document. If a majority imposed an unconstitutional law on a single region, a state could nullify the federal law within its borders, an
d its officials could block federal officers from carrying out national laws.
Historians argue about the origins of nullification, but there can be little doubt that it more than echoes Jefferson's claim, made in the Kentucky Resolves, that a state could oppose the implementation of the Alien and Sedition Acts. Calhoun similarly believed that South Carolina could refuse to enforce an unconstitutional tariff while it sought redress through the national political process. If those efforts failed, a state could consider secession. South Carolina adopted a legal brief defending nullification, secretly drafted by Calhoun and published as the "South Carolina Exposition and Protest," which concluded that the states possessed the sovereignty to veto actions of the federal government.191
The real issue behind nullification was slavery. A popular majority that could enact a tariff, Southerners worried, could eradicate slavery, too. This question prompted one of the greatest debates ever to occur in the Senate, between Webster and South Carolinian Robert Hayne.192 After Hayne defended state sovereignty independent of the Constitution, Webster gave his well-known speech on the Union that ended with the famous words, "Liberty and Union, now and forever, one and inseparable."193
Jackson made his own views on nullification clear at a political banquet in honor of Jefferson in April 1830, held by Southern and Western Congressmen opposed to the tariff. With Calhoun in the audience, Jackson had come ready to take on nullification. Several preselected speakers gave increasingly inflammatory toasts in favor of state sovereignty, and when the President's turn came, all became silent to see what position he would take. As always, Jackson left no doubt about where he stood. "Our Union," he declared, "it must be preserved."194 Calhoun followed. In the midst of a rambling toast, the Vice President responded, "The Union, next to our liberty the most dear. May we all remember that it can only be preserved by respecting the rights of the States, and distributing equally the benefit and burden of the Union."195