How do you deal with an American president who does not obey the US constitution? The question has arisen because the recent episode where deportation flights carrying Venezuelans were dispatched to El Salvador, despite a court ruling that those flights must not proceed, suggests Donald Trump’s administration has a limited understanding of the separation of powers in the US. A president has no power to defy a court order.
Similarly, a Brown University medical professor, Rasha Alawieh, was deported to Lebanon because of a perceived sympathy for Hezbollah, despite the fact she had a valid US work visa and despite a judge’s order blocking her removal from the US.
This administration’s seemingly blatant disregarding of constitutional procedure is not the first time such a problem has arisen. Early in the life of the new republic it was posed by the election to the presidency in 1828 of Andrew Jackson. Jackson, an unashamed populist, harboured deep suspicion of all federal institutions. His belief in states’ rights sometimes trumped his commitment to the union.
Trump echoes Jackson in many ways. Just as Trump reviles Joe Biden, so Jackson scorned his predecessor, John Quincy Adams. Trump’s attacks on institutions such as USAid and the Department of Education, is echoed by Jackson’s extraordinary war on the Bank of the United States, which he thought too big and grand for a democratic people.
But the parallels come closest in relation to forced expulsion, whether of individuals in Trump’s case, or of whole peoples in Jackson’s.
When Europeans established their colonies in the Americas, they justified their presence by asserting the philosopher John Locke’s principle that legal title to land belonged to those who farmed it. Since the native peoples were mostly nomadic hunters, this legal fiction enabled the Europeans and their American successors to seize land while claiming it was theirs “by right”.
But the peoples of the American southeast – the Chickasaw, Choctaw, Creek, Seminole and Cherokee – took the Europeans at their word. They adopted a much more European lifestyle, establishing towns, wearing European clothing, even converting to Christianity. But above all, they started farming the land, even to the point of owning slaves to work on it. They were known, rather patronisingly, as the “five civilised tribes”.
None of this adoption of western culture would save them, however, when Georgian cotton planters realised, first, that the tribes were sitting on prime cotton-growing land and, subsequently, that there was gold in Cherokee territory. In 1828 the state of Georgia claimed jurisdiction over all the land of the five tribes. Jackson, an old “Indian fighter” and a staunch states-rights southerner who was about to begin his stint as seventh US president, clearly sympathised.
Jackson’s first State of the Union address made it clear that he intended to remove all the “Indian” tribes to the desert lands west of the Mississippi. In Congress, Jackson’s opponents accused him of betraying the very principles on which the republic had been founded. What had these people done that required their removal – and since they were indeed farmers, why was their right to their own land not to be respected in law?
Despite these good reasons for these people to be allowed to stay, the 1830 Removal Act passed and the Chickasaw, Choctaw and Creek peoples packed up and left. The Seminole attempted armed resistance but were defeated.
Supreme Court versus the US president
The Cherokee took their case to the Supreme Court. The US Supreme Court had originally been intended merely as a final court of appeal, but under its long-sitting chief justice, John Marshall, it had established itself as the ultimate arbiter of what was and was not lawful according to the constitution. And this included acts of the president.
The court’s new-found constitutional role was deeply resented in the White House as an unacceptable incursion on the rights of the president, even when it ruled in the president’s favour. Now Marshall was being asked to rule on the constitutional legality of Georgia’s claim to the land of the Cherokee people.
The Cherokee had tried to declare they were a fully independent state, but the court ruled against that. It did, however, find that they constituted a dependent nation within the United States and that, therefore, the State of Georgia had no jurisdiction over them.
Wolfgang Sauber/Wikimedia Commons, CC BY-SA
Georgia, however, simply ignored the Supreme Court and in 1838 sent in troops to round up and expel the Cherokee people. Some 13,000 people set off on what became known as the “Trail of Tears” – about one-third of them died of weakness, disease and hunger.
One American officer commented later that: “I fought through the civil war and have seen men shot to pieces and slaughtered by thousands, but the Cherokee removal was the cruellest I ever knew.”
Jackson was exultant, taunting Marshall that his judgement “has fell still born” and sneering that Marshall had no means of enforcing it. The Cherokee chief, the half-Scottish John Ross, summed up the situation: “We have a country which others covet. This is the only offence we have ever yet been charged with.”
The Cherokee had found that, if the president chose to ignore it, the US constitution offered no protection to the innocent. It’s a history lesson Greenlanders, Mexicans and Canadians – and indeed many Americans who may fall foul of this administration and seek recourse to the law – would do well to study.
