Have you ever read about the curious case of Worcester v. Georgia, Gentle Reader? Virtually no one has, yet it’s among the truly seminal Supreme Court cases of the early Republic. It concerned a Christian missionary, Samuel Worcester, who had moved onto a Cherokee reservation in Georgia, and had started a newspaper there. Georgia had a state law that required non-Amerinds who wished ingress to an Amerind reservation were required first to purchase a license to do so from the state. Worcester was convicted under that law and imprisoned. The case above, for which Chief Justice John Marshall wrote the decision, established that the relationship of the Amerind tribes with the U.S. is a nation-to-nation relationship. Therefore, no state could make laws that impinge upon any Amerind tribe.
President Andrew Jackson was unhappy with the decision. He refused to assist in the enforcement of the decision against Georgian resistance, even though by implication it asserted a federal prerogative, which would seem to mandate federal enforcement. The apocryphal saying “John Marshall has made his decision; now let him enforce it!” derives from that decision. (There is no record of Jackson’s ever making the neatly phrased statement attributed to him, though he was of approximately that opinion.) Georgia eventually freed Worcester, but only after he had struck a deal with the state to leave Georgia permanently, which he honored.
It was the first significant case of the Executive refusing to accept the authority of the Judiciary. It underscored the Judiciary’s lack of an executive arm of its own, the reason for Alexander Hamilton’s characterization of the Judiciary as “the least dangerous branch” of the federal government:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Today, Hamilton’s assumption that the power of the purse would be sufficient for Congress to ensure that the Executive would not defy it seems a bit naive.
I’ve written on other occasions about the difference between law de jure and law de facto. In essence, the law as it genuinely affects the lives of Americans is that subset of the de jure laws – i.e., the laws passed by Congress or the state or local legislature – which is effectively enforced: the law de facto. Why, after all, would anyone care overly much about unenforced laws?
(In point of fact, there is a reason to concern oneself about an unenforced law: it’s available to be used against those the political elite dislikes. Consider that before arbitrarily dismissing unenforced laws such as Andrew Cuomo’s “SAFE Act.” However, in practice only those laws that are actively enforced are pertinent to the private citizen...at least, as long as he keeps his head down..)
The Executive branch of the federal government comprises the presidency, all the Cabinet departments, and the entire federal bureaucracy: the “alphabet agencies,” to which Congress routinely delegates quasi-legislative power. The Cabinet, of course, includes the Departments of Justice and Treasury, which have overt enforcement arms: the FBI and the Secret Service. As Commander-in-Chief of the nation’s armed forces, the president also wields American military power, which would constitute a truly fearsome enforcement agency were it to be used within America’s borders.
(Numerous bureaucracies have been arming their field personnel. Full auto weapons. Armor-piercing ammo. Mustn’t forget that.)
Congress has its Sergeant-at-Arms. The Supreme Court and lesser federal courts have their bailiffs.
Given all the above, who decides what the laws of the United States, de facto, really are?
Worcester v. Georgia reminds us that the loose-cannon ways of the Obama Administration, while extreme, are not without precedent. Indeed, Lincoln’s assumption of dictatorial powers during the Civil War, Woodrow Wilson’s peremptory imprisonment of various peace activists after the U.S. entered World War I, and Franklin D. Roosevelt’s freewheeling “New Deal” capers should constitute a dramatic reminder that when the Executive decides to defy and ignore the Legislative and Judicial branches, it can do so with impunity. The other branches cannot effectively discipline a lawless Executive, at least while its myrmidons remain loyal and obedient to it.
Consider the recent Supreme Court decision striking down EPA overreach under its specious interpretation of its powers under the Clean Air Act. The White House announced immediately that it was going forward with its environmental regulatory program – a program which threatens to raise the price of electrical power by a factor of three – even so. What can the Court do about it? For that matter, what could the Court have done, had it decided King v. Burwell differently, were the White House to instruct the IRS to continue granting ObamaCare subsidies to persons who enrolled through the federal exchange in defiance of the ruling?
The Obama Administration is exceptional only in its brazenness, its “you can’t stop me” attitude toward Congress and the judiciary. The core problem has been with us since the ratification of the Constitution. Indeed, it might be insoluble: there will always be a single commander for any enforcement agency, and the men with the guns will be inherently disposed to do as he says, other voices notwithstanding.
I think I’ve come to the end of the “Ultimate Manifesto” series. Hard thought indicates that “the system” as we understand it possesses inherent dependencies that can and have failed us. Specifically, it depends upon the willingness of the three branches of the federal government to respect their Constitutional bounds. When that respect dissipates, as it appears to have done, the remaining remedies lie solely in the hands of the citizenry. One of those remedies, the electoral process, has proved insufficient. The other involves a great amount of blood and destruction.
What, then, must we do?
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