War Powers:An Introduction

Artemus Ward

Department of Political Science

Northern Illinois University

"Burning of the Frigate Philadelphia in the Harbor of Tripoli, February 16, 1804"

Introduction

• Since the nation’s founding both the President and Congress have asserted what they view as their constitutional authority with regard to war.

• Article I, Section 8: “The Congress shall have the Power… To declare War… raise and support Armies… provide and maintain a Navy…”

• Article II, Section 2: “The President shall be Commander in Chief of the Army and Navy of the United States…”

• The Supreme Court did not weigh in on war powers issues until the Civil War. Yet for the first 100 years of American history both Congress and the President continually tested the extent of their war powers.

“Tribute”• In 1800, U.S. Naval

Captain William Bainbridge was sent to carry the tribute which the United States still paid to the Dey of Algiers to secure exemption from capture for its merchant ships in the Mediterranean.

• America had been paying $1 million each year to Algiers and other Barbary states until an adequate U.S. Navy could be built to oppose the pirates.

The First Barbary War (1801–1805)• At the very start of his administration, President Jefferson

decided to terminate the practice of bribing the Barbary nationals of Algiers, Morocco, Tunis and Tripoli to keep them from seizing U.S. merchant ships in the Mediterranean and holding American seamen for ransom.

• When the pasha of Tripoli declared war against the U.S. on May 14, 1801, by ordering his soldiers to chop down the flagpole at the American consulate in Tripoli, Congress was not in session. Nevertheless, Jefferson decided to dispatch a squadron of warships to the area without summoning Congress into special session. When Congress returned to the Capitol there was no effort by the administration to seek its consent to the hostilities that had occurred with a formal declaration of war. Instead, the House Ways and Means Committee, working closely with Treasury Secretary Albert Gallatin, raised import duties to provide the necessary funds to finance the war. After several years of intermittent fighting, the pasha finally sued for peace and was paid a ransom of $60,000 for the release of American prisoners. But payments to the other Barbary States continued until 1816 and the Second Barbary War.

• Though some saw Jefferson’s actions as a stunning example of executive encroachment on congressional authority, it only encouraged Jefferson to further efforts.

U.S. Schooner ENTERPRIZE Capturing the Tripolitan Corsair TRIPOLI, 1 August 1801.

The Louisiana Purchase (1803)

Jefferson’s negotiations for and purchase of the Louisiana territory was criticized by his political opponents. Federalists argued that he Constitution provided no specific grant of authority to increase the size of the country, and Congress had no constitutional authority to incorporate the territory and its people into the Union without express consent of existing states. Jefferson, normally a strict-constructionist proponent of state’s rights, was branded a hypocrite. But Jefferson himself had doubts about the constitutionality of the purchase. He told Senator John Breckinridge: “The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nationals into our Union.” But he pressed Congress for approval and ultimately got it when the Senate ratified the treaty and the House authorized payment.

War of 1812• With foreign relations steadily eroding and the

likelihood of war with Great Britain increasing, President James Madison asked Congress to prepare the nation for possible war. Working with the administration, Congress—led by Speaker Henry Clay—responded by arming merchant ships, increasing the size of the regular army, raising a temporary militia, and placing an embargo on trade with Britain.

• On June 1, 1812—just after his reelection as President, Madison sent a secret message to Congress, which was read behind closed doors, asking for a consideration of a declaration of war. The message was referred to a select committee chaired by Rep. John C. Calhoun of South Carolina. Two days later, the House debated the committee’s “war manifesto” which declared that this was the nation’s “second war of independence.”

• On June 4, the House, for the first time, voted a declaration of war 79-49. The bill languished in the Senate for nearly two weeks. But on June 17, the upper house gave its consent to war 19-13. The following day, June 18, President Madison signed it and proclaimed a state of war with Great Britain.

“A View of the Capitol after the Conflagration, August 24, 1814” Looking from the southeast, the burned but standing north wing where the Senate and Supreme Court met and the newly completed south wing where the House met. The two were joined by a walkway where a rotunda and dome were planned.

First Seminole War (1817-1818): Jackson Seizes Florida

• During the War of 1812, General Andrew Jackson became a national hero after his victory over the Creek Indians at the Battle of Horseshoe Bend (1814) and improbable victory over the British in the Battle of New Orleans (1815).

• The Seminole Indians in Florida—a Spanish territory—regularly crossed the border and attacked American settlements in Georgia and Alabama, then retreated to what they felt was the safety of their towns in Spanish territory. Unwilling to allow this violation to continue, President James Monroe instructed his secretary of war, the newly appointed John C. Calhoun, to direct Jackson to pursue the Indians and put a halt to their invasions.

• Not content with just subduing Native Americans, Jackson asked permission to seize Florida and, as far as can be determined, he received it, although the language of Monroe’s letter was guarded. In any event, Jackson not only pursued the Seminoles, killed a number of them and burned their towns, but he also executed two British subjects accused of aiding the Indians and captured St. Marks and Pensacola, the two important seats of Spanish authority in Florida.

General Andrew Jackson

General Andrew Jackson commands his troops during the First Seminole War (1817-1818).

First Seminole War (1817-1818): Criticism and Aftermath

• This invasion and seizure of Florida without a declaration of war by Congress, and the execution of the British nationals by an army court-martial, triggered an international crisis.

• House Speaker Henry Clay denounced the action as “open, undisguised and unauthorized hostility” comparing Jackson to many of the tyrants of history: “Beware how you give a fatal sanction, in this infant period of our republic, scarcely yet two score years old, to military insubordination. Remember that Greece had her Alexander, Rome her Caesar, England her Cromwell, France her Bonaparte, and that if we would escape the rock on which they split, we must avoid their errors.”

• But Jackson’s popularity made it impossible for Congress to do anything about the matter. A few weeks later, on Feb. 22, 1819, Spain signed a treaty with the United States in which it ceded Florida in return for which the United States assumed the claims by American citizens against Spain to the extent of $5 million. It was an achievement that greatly enhanced the reputation of Jackson and Secretary of State John Quincy Adams who had defended Jackson’s actions before President Monroe and the cabinet and convinced the Spanish that it served their interests to relinquish Florida to the United States.

• When Jackson became President in 1828, he set about moving the Seminoles out of Florida altogether, an effort which led to the Second Seminole War of 1835-42.

Henry Clay (1850)

Photograph of Andrew Jackson just before his death (1845).

U.S.-Mexican War (1846-1848)• The U.S. annexed Texas as a slave state in 1845 but Mexico

refused to recognize the annexation. As a result, the border between the U.S. and Mexico was in dispute.

• The U.S. also wanted to purchase California and New Mexico but Mexico refused.

• President James K. Polk sent U.S. troops led by General Zachary Taylor protect what the U.S. believed was its border (the Rio Grande). Believing the U.S. had invaded Mexican territory, Mexican troops moved across the Rio Grande and ambushed a detachment of Americans—killing 16 and capturing the rest.

• Taylor, reported this action as a Mexican attack and concluded: "I presume this means the beginning of war." Polk declared that “Mexico has…shed American blood upon American soil” and asked Congress to “recognize the existence of war.”

• Polk and several Democratic leaders on the House Military Affairs Committee had previously worked out a bill appropriating $10 million and authorizing the President to call for 50,000 volunteer Army reinforcements. A number of Whigs protested. Not only was this an act of outright aggression, they argued, but they were being asked to vote on providing volunteers before war had been declared. Democrats quickly settled that problem by attaching a preamble to the measure stating that war already existed by the actions of Mexico.

• That wording took the place of a formal declaration and the measure passed the House by a vote of 174 to 14. Both future President Abraham Lincoln and former President John Quincy Adams voted no. Lincoln spoke from the House floor: “Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion…and you allow him to make war at pleasure.”

• Still, nearly all the Whigs in the House added their support, lest the record show them as failing to support the troops. The Senate agreed 40-2 and Polk signed it into law on May 13, 1846.

James K. Polk grew up in Tennessee and practiced law until he won, at age 30, election to Congress as a Democrat in 1825. Polk eventually became speaker of the house, but left Congress in 1839 to serve as governor of Tennessee. His otherwise stellar political career came apart two years later when he lost reelection, and he failed in a comeback attempt two years later. At the 1844 Democratic Convention, Polk’s political career appeared to be finished until inter-party squabbles vaulted him forward as a compromise candidate for president of the United States; Polk surprisingly won the subsequent election by the slimmest of margins.

(Left): Map of Mexico 1835-1846; (Right): The Republic of Texas. Present-day outlines of the U.S. states are superimposed on the boundaries of 1836–1845.

Above: US troops marching on Monterrey during the U.S.-Mexican War.The War ended with the signing of the Treaty of Guadalupe Hidalgo (1848) which not only recognized the Rio Grande as the border with Texas but also ceded the United States the present-day states of California, Nevada, Utah, and parts of Colorado, Arizona, New Mexico, and Wyoming. As a result, Mexico lost 2/3 of its territory.

Conclusion

• In the pre-Civil War period Presidents pushed the boundaries of their constitutional authority to wage war.

• Sometimes Congress agreed and sometimes not but the Supreme Court was never called on to rule on any of these disputes.

• Should the Supreme Court stay out of the area of war powers and leave the questions up to the elected branches and the American people?