Only One President Has Defied the Courts

It’s not Trump.

Or, I should say, it’s not Trump yet. However, given this administration’s…broad view of executive power, it’s worth looking at how past presidents have interacted with a court system that opposed them. Most presidents, as you would expect, reacted to an unfavorable court ruling by obeying the courts’ directive, with only a few real exceptions.

From history class, I recalled that Chief Justice John Marshall had ruled against Andrew Jackson’s interest in dealing with the Native American populations. But upon further inspection, it appears that despite the famous quote of Jackson’s “John Marshall has made his decision; now let him enforce it!”, the ruling in Worcester v Georgia was actually not a constitutional crisis. The quote itself seems apocryphal.

Marshall ruled that Georgia did not have the ability to regulate the interaction between Georgians and the Cherokee; instead, only the federal government has that power. Georgia complied and they freed the plaintiff, Worcester, eventually, but Andrew Jackson had nothing to enforce, since the federal government was not a party to the suit. Moreover, the Indian Removal Act had already been passed, and so the removal of native tribes on the Trail of Tears continued, with Marshall’s ruling changing nothing.

In 1942, German sabateurs were captured on American soil. President Franklin Delano Roosevelt issued an executive order declaring they would be tried by a military tribunal, and they appealed that the President could not try them under a military tribunal, and they petitioned for a writ of habeas corpus under the 1866 decision Ex parte Milligan which stated that civilians in the U.S. could not be denied habeas corpus and their right to trial. In Ex parte Quirin, the Supreme Court ruled against the Germans, siding with the President. Pretty straightforward, except according to Newt Gingrich (couldn’t find it anywhere else), Roosevelt threatened the Court that he would ignore their ruling and refuse to issue a writ of habeas corpus if the justices decided against him. So not a constitutional crisis, just the threat of one.

In 1952 there was a famous case of Truman seizing control of steel mills during the Korean War. In Youngstown Sheet & Tube Co. v. Sawyerthe Supreme Court ruled against Truman, stating that the powers the president claimed to have under the Taft-Hartley Act were not present. One of the concurring opinions was that of Justice Robert Jackson who divided presidential power into three categories: (1) Powers explicitly granted or implied by Congress, (2) Powers that Congress has not stated a position on, and (3) Powers that Congress has explicitly or implicitly rejected from giving to the president. This has become the standard way of analyzing presidential versus congressional power. Of course, at the conclusion of the case, Truman immediately returned control of the steel mills to their owners. Again, the Court’s decision was respected.

Perhaps the most famous case of executive action gone overboard is the Watergate scandal. A special prosecutor obtained a subpoena ordering Nixon to turn over certain conversations he had recorded. Nixon argued that the special prosecutor had not proven the tapes were important to the investigation, that the courts did not have jurisdiction over this “internal” executive branch matter, and that the President has absolute executive privilege of communications between high government officials. The Supreme Court ruled unanimously against him on all three counts. However, in United States v Nixon, Nixon did comply and turn over the tapes, despite it likely ending his presidency. This was a major moment, as I detailed in “Against Trump“, several months ago. If he had refused, would the court have been able to hold him in contempt and have U.S. Marshals arrest him? Technically, the marshals are part of the Justice Department, so that seems problematic, as the Justice Department answers to the President. Regardless, we have gone through almost all the famous cases, and the President has basically never gone against an explicit court decision.

Going further back than any of these presidents, it’s possible that Jefferson was the first to have actually defied the courts. In 1807, Thomas Jefferson signed the Embargo Act which was meant to punish Britain and France during the Napoleonic Wars for their attacks on American shipping. It was a pretty miserable failure, and apparently in Gilchrist vs Collector of Charleston, Justice William Johnson ruled against the government’s authority (although this was a congressional action, not just executive action). The New Yorker says that despite this ruling, the policy remained in place until 1809, but it was so early on in American history that I’m having trouble finding any sources to validate that claim.

But we can do better than an alleged delayed repeal of an unconstitutional act of Congress from 200 years ago! The best example of defiance on record belongs to Abraham Lincoln in the aftermath of Ex parte Merryman, and it is quite unrepentant.

In 1861, Chief Justice Taney (in the capacity of a Circuit Court) ruled that President Abraham Lincoln had unconstitutionally suspended the right to the writ of habeas corpus during the Civil War. The court ruled only Congress has that power. Lincoln and the army defied the order. Their argument was hilariously reminiscent of Trump, stating that Taney had not actually ordered them to release Merryman. Of course, they didn’t stop there as several newspaper owners and editors were also detained by the federal government, as well as eventually the Baltimore police chief, the Baltimore mayor, and even 30 members of the state legislature! A Maryland state judge was not only arrested, but beaten unconscious by federal troops, and then held without being charged for six months.

Even after the judge’s ruling, Congress did not vote to authorize Lincoln’s suspension of habeas corpus, until two years later, in the 1863 Habeas Corpus Suspension Act.

So what are the takeaways? One is that it’s fairly common for presidents to claim they have more power than they do. Obama, for example, lost in the Supreme Court more often than any modern president. It is, however, highly uncommon for presidents to actually defy the courts and continue to use their claimed powers when the courts have ruled against them. If Trump were to do so, by my estimate he would be the only person to do so not during a civil war.

Another interesting point is that in terms of abuse of power and constitutional crises, Trump has done nothing in comparison to Lincoln. Certainly President Lincoln faced extenuating circumstances and a secession crisis that may have made further constitutional crises seem minuscule in comparison. Nonetheless, it seems clear in hindsight that suspending habeas corpus did not improve support for the Union in Maryland, nor was jailing critical members of the press really necessary for victory. Interestingly, according to author Marc Neely, Lincoln was able to get away with these civil liberties abuses because they were largely aimed at three groups with little political power: residents of southern states who had been stuck on the wrong side of the border when war broke out, residents of border states where Lincoln had little political backing anyway, and foreigners.

Of course, if anyone was justified in taking extreme actions on civil liberties, it would be the president during the civil war, but unfortunately, every executive targets politically vulnerable groups and justifies it under national security reasoning (AdamsWilsonFDR, NixonGeorge W. Bush). And as you’d expect, Lincoln’s actions have become a precedent for other abuses. This essay from the Heritage Foundation in 2004 cites Lincoln’s actions in justifying President Bush’s holding of “enemy combatants” without a trial, equating the war on terror with the dangers of the Civil War. Trump has used related rhetoric words to describe threats from immigration. Were he to ignore a court order in the future, it’s virtually certain to be under national security justifications.

Finally, regardless of Lincoln’s accomplishments, we should be very concerned with any presidents who cite Lincoln’s extreme wartime actions as justification for their policies. Lincoln’s circumstances were extreme, and even then I would argue his defiance of court rulings was questionable. Any test for when it is acceptable to suspend civil liberties should be equally extreme in rigor. For example, unless states have actually seceded and there currently exists a newly elected second president of those seceded states, Congress should not even consider curtailing civil liberties, much less the President alone. Nonetheless, the long history of executive overreach by American presidents is likely to continue under Trump. We can only hope it never reaches the unprecedented event of peacetime court defiance.

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Oracle v Google is Everything that’s Wrong with Copyright

This week, the Oracle v Google trial came to a close, with a jury finding that Google’s use of Oracle’s Java API names was fair use.  This is, of course, not the end, as Oracle has vowed to appeal the decision.

The outcome is monumental, but only because the courts have previously erred significantly and ruled that APIs are copyrightable at all.  The Supreme Court had refused certiori to examine that ruling of an Appellate court, which in turn was a reversal of a District court decision (EFF has all the details).  Interestingly, this most recent case was heard under the original judge, so it’s quite possible the Appellate Court will reverse again.  I think it’s crazy to suggest that API names are even copyrightable, but given that they’ve been ruled as such, I can’t see how use of APIs isn’t fair use.

Google didn’t copy Oracle’s code; they rewrote it themselves, but used the same name for the code functions, and then packaged it into a much better product than anything Oracle had created.  And it’s not like this negatively impacted Java’s market viability (contrary to what Oracle claims); Android likely saved Java from becoming a defunct language used only in big enterprise environments.  Younger aspiring developers want to program in languages for apps and new web technologies like Ruby, Node, Swift, and even Python. But the only new reason to know Java is because Android exists; if Android had picked Python, that’s what everyone would be learning to make Android apps. It’s ridiculous.

But more fundamentally, the use of API names can’t be restricted! That defeats the whole purpose of having them! Sure, Twitter has the right to restrict the calling of functions on their servers through their APIs, but the actual name of the REST calls isn’t theirs forever now. Steve and Leo on Security Now said it very well about APIs:

It’s driving a car. If we didn’t have a single uniform car/driver interface, meaning brake and accelerator, and this is how the steering wheel works, it would be a disaster. And as I thought about this more, I realized that this notion of standards is what this comes down to. And standards are such a part of our life that it’s even – it’s almost hard to appreciate the degree to which we depend upon them. I mean, think about even threads, you know, nuts and bolts with standard threading. If everyone just made up their own, so that screws were not interchangeable, it would just be a catastrophe.

I would go even further; a steering wheel is a patentable invention that other car companies would have to pay to use…but calling it a “steering wheel” isn’t something you can restrict. Doing so would be a blatant misuse of copyright and horrific reduction in free speech. Steven Gibson continued:

And, I mean, so I guess my real complaint is that Oracle has historically benefited from the spread and the use of Java. And so because they allowed that to happen, it’s done as well as it has. And suddenly now Google has capitalized on it, and they’re wanting to take their marbles back and to say – or basically, essentially, this is a $9.3 billion lawsuit. So they’re saying we want some of the revenue which Google is obtaining as a consequence of doing a far better job in commercializing and leveraging Java for profit than we ever could. Because all we’re doing is telling everyone to get Java out of their computers…

…The BIOS is another perfect example. The fact that IBM gave us an interface called the Basic I/O System allowed all kinds of programs to be written without regard for whether it was, for example, a color graphic display or a monochrome graphic display. They were completely different. They occupied different hardware regions. Yet the BIOS hid those differences so that a program didn’t have to worry about what type of hardware you had. And that was an API, a standard. But just in general this kind of standardization, you can sort of imagine sort of a Mad Max post-cataclysm world where you no longer have standards, and everyone’s thing is just made from scratch, and they’re not – nothing’s interoperable. And it would just be a bizarre place.

And I think one of the major things that the Industrial Revolution did was it taught us the power of interoperability. And here Oracle is trying to say, yeah, we’re going to get a toll for you using something that we purchased and never figured out how to use. 

I’ve said it in the past, and I’ll keep saying it: the purpose of all intellectual property law is not to help the owners of intellectual property, but rather to promote creativity and new works.  Ruling that API names are copyrightable does literally nothing to promote interoperability or improve technology; it only makes it harder to improve the world. Getting this fair use ruling is better than nothing, but it should never have come to this.

Photo credit: Android Lineup by Rob Bulmahn, licensed under CC-BY-2.0.