In 1832, Justice John Marshall ruled that the state of Georgia could not grant licenses for non-Native Americans to settle on federally created Native American land. President Andrew Jackson, a populist white supremacist who despised and murdered Native Americans in the thousands, is reported to have said in response, “”John Marshall has made his decision; now let him enforce it!”
Donald Trump’s closest adviser Steve Bannon has reportedly been the lead actor responsible for many of Trump’s recent executive orders, including the illegal ban on immigration from large parts of the Muslim world. Bannon is a white nationalist, the ideological architect of Trump’s xenophobic populism, and a big fan of Andrew Jackson. Bannon sees in Trump another Jackson, and even hung a portrait of Jackson in the Oval Office. Some historians are pushing back on the comparison, but clearly the current White House is trying to create a 21st century version of what they perceive to be Jacksonian populism.
Andrew Jackson’s confrontational attitude toward the courts, particularly on matters of race, war, and human decency, bears particular scrutiny. Jackson hated the courts, making every attempt to limit their power and even instigate clashes with the judiciary. Jackson felt that judges had no authority to place any limits on majoritarian rule. Both states and the federal government attempted to nullify or simply refuse to enforce judicial rulings, and various crises were only resolved when majorities who favored court decisions protecting minority interests once again won elected office and created a government culture in which the judiciary was better respected.
Fast forward to the recent Muslim ban. Bannon had to know that the courts would immediately step in to halt the deportations on multiple legal grounds. But not only did Bannon seek that confrontation, he did so in the most provocative way possible: it was Bannon’s idea to overrule the Department of Homeland Security and include green card holders in the immigration ban.
And, in fact, a Constitutional crisis has already arisen: some border patrol have been defying court orders by detaining legal residents without access to attorneys, in spite of direct personal pressure from United States senators and armies of lawyers.
It’s possible that this chaos is simply a result of overzealousness and incompetence on the part of the Administration. But Bannon is known to be a cunning a strategist who doesn’t show his hand and doesn’t like to openly talk about his tactics. His actions are seldom random and always deliberate.
We do know that Bannon implemented a highly controversial, high-profile order that he knew to be illegal and particularly cruel, but of great importance to his white nationalist base. We know that on the same day he placed himself on the national security council, removing the joint chiefs from the room. We know that Bannon idolizes Andrew Jackson and sees himself as above the courts.
We don’t yet know the Trump Administration’s response to the court rulings. But it’s worth considering the possibility that Trump’s closest adviser is actively seeking a Constitutional crisis that tests the power of the judiciary to stop any potential actions by the Executive Branch.
This is a very dangerous time for the country.