May the President ignore rulings of the Supreme Court if he believes the Court has rendered an opinion that finds no foundation in the Constitution? This question is often sparked by a legend involving President Andrew Jackson and the Court’s ruling in Worcester v. Georgia (1832). The story begins with the celebrated case of Cherokee Nation v. Georgia (1831). In this case, Chief Justice John Marshall ruled against the argument that the Cherokees were a sovereign nation. He has ruled against President Jackson’s claim that they were subject to state law. The tribes, Marshall declared, were “domestic dependent nations,” subject to the authority of the United States, as a ward is to a guardian. When white missionaries defied Georgia law by entering Indian territory without a license from the state, they were arrested and sentenced to the penitentiary.
In Worcester, Chief Justice Marshall struck down the Georgia law and all Georgia laws dealing with the Cherokees. The state of Georgia had not intention of complying with the Court’s ruling and, in fact, boycotted the judicial proceedings. When Jackson learned of the decision, he is said to have replied: “Well, John Marshall has made his decision: now let him enforce it !” There is no evidence to support the claim that Jackson said this; thus, it is a matter of legend. Indeed, it’s highly unlikely that he would have uttered those words because there was nothing for Jackson to enforce as President. Marshall had ordered the superior court of Georgia to reverse its decision. Had the Georgia court refused this order, then Jackson might have been expected to enforce the Supreme Court’s ruling. As the episode unfolded, the governor of Georgia, under pressure from Jackson, pardoned the missionaries with the understanding that they would make no further motion before the Supreme Court. The Cherokees yielded, signed a removal treaty and head west along what they called a “Trail of Tears.” Jackson had left the White House by the time that occurred.
The issue of the relative likelihood of presidential “disobedience,” that is, a refusal to comply with the Court’s ruling, may or may not influence the Court’s interpretation of statutes and laws. If it were a condition of the Court’s decision, then the very concept of limited government and the rule of law would be compromised. It has been suggested, although without demonstrable evidence, that Chief Justice John Marshall, in Marbury v Madison (1803), refrained from ordering Secretary of State James Madison to comply with his statutory duty to deliver Marbury’s commission to him out of fear that President Jefferson might not comply with such a ruling. Just two years later, in United States v. Hooe (1805), Marshall was warned that “there was no means of compelling” the United States to pay costs. He replied, “that would make no difference, because we are to presume that they would pay them, if bound by law so to do.” Manifestly, Marshall was undeterred in reaching his conclusion in Worcester by rumors that Jackson would not comply with the Court’s ruling. Whether Justices have been deterred from reaching the merits of a case out of concern that its decision would not be enforced by a President who disagrees with the ruling, has been the subject of considerable scholarly commentary. For example, on 13 separate occasions, the Supreme Court was asked to rule on the constitutionality of the Viet Nam War, but the Court refused to reach the merits for a variety of reasons, including invocation of non-justiciability, the political question doctrine and the doctrine of equitable construction, among others. While some scholars criticized the Court for not reaching the merits, others defended it on grounds of prudence. The defense of the Court took into account the inability of the Court to force the sitting President—Richard Nixon—to carry out its ruling, in the event that it held the war unconstitutional for lack of congressional authorization, and the President wanted to continue to wage it. The conclusion was that President Nixon might give a wink and a nod to the Court’s ruling, paying lip service, while continuing to engage in military hostilities, which would undermine the Court’s prestige, and hence its power.
President Lincoln’s defiance of Chief Justice Roger Taney’s decree in Ex parte Merryman requires discussion in this context. In his message to Congress on July 4, 1861, President Abraham Lincoln explained his actions in responding to the firing on Fort Sumter, including directions to “the Commander General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus.” The suspension, initially, was limited to the area between Washington and Philadelphia, which facilitated the movement of the Union army. The suspension was gradually widened. Lincoln was aware of the concerns surrounding his questionable authority to suspend the writ of habeas corpus, and noted that, as President, he had sworn to “take are that the laws be faithfully executed,” and thus he “should violate them.” Lincoln never claimed unilateral authority to suspend the writ; rather, he believed it was shared with Congress. Depending on the circumstances, a congressional recess should not deprive the President of authority to suspend the writ during times of “invasion or rebellion.”
Union army officials arrested John Merryman and held him at Fort McHenry in Baltimore. Chief Justice Taney, riding circuit, issued a writ of habeas corpus to the commander of the fort, instructing him to deliver Merryman to the circuit court in Baltimore on May 27, 1862. The commander, on Lincoln’s orders, refused to bring Merryman to the courtroom. Taney issued an opinion stating that Merryman was entitled to liberty, but he lacked the authority and capacity to enforce his order. Lincoln’s defiance of Taney’s order occurred at a crucial juncture in the nation’s history. It was Lincoln, not Taney, who carried the burden of preserving the Union. Assuming, for the sake of argument, that Lincoln was wrong about his authority to suspend the writ of habeas corpus, as he surely was, the legal issue was resolved when Congress enacted the Habeas Corpus Act of 1863, which covered Lincoln’s suspension with retroactive authorization, making his unconstitutional act constitutional after the fact.
Chief Justice Taney assumed that the judiciary has the last word on the meaning the Constitution. In Taney’s conception of the court as the “ultimate interpreter,” executive defiance of a court order would introduce chaos and uncertainty, for it would reopen the argument that each branch is free to construe the Constitution for itself, particularly with respect to its own powers. As it happens, some of the nation’s iconic figures have embraced, precisely, the doctrine of coordinate construction.
The question, then, of whether the President is required to enforce Supreme Court decisions may be framed in this manner. In Cooper v. Aaron (1958), the Court declared that it is the ultimate guardian of the meaning of the Constitution. Thus, the other branches of government—Congress and the Presidency—should not interpret the Constitution for themselves; rather they should look to the Court for the authoritative interpretation of the Constitution. The Court, in reaching this conclusion, determined that its rulings constitute the law of the land, within the meaning of the Supremacy Clause, and that the President, by virtue of his duty under Article 2, to “take care that the laws are faithfully executed,” has the responsibility to enforce judicial decisions.
But the Court’s premise in Cooper has drawn fire, historically, from Presidents Jefferson, Jackson and Lincoln, among others, who have denied they possess a duty to enforce judicial decisions with which they disagree. Their position is grounded on what is variously know as “coordinate construction” or “departmental construction” of the Constitution. Let’s turn to planks and pillars of that approach to constitutional interpretation.