Crisis and Command: A History of Executive Power from George Washington to George W. Bush

by John Yoo

  Washington then adopted a wait-and-see attitude. Congress amended the law to moderate, but not eliminate, tax enforcement, and Hamilton experimented with measures to encourage compliance. Armed resistance still broke out in the summer of 1794, when tax officers began to issue arrest warrants in western Pennsylvania, with trials to be held across the state in distant Philadelphia. About 500 militiamen skirmished with a dozen regular soldiers and burned the home of the federal tax inspector on July 16. On August 1, about 7,000 armed men marched on Pittsburgh; federal officials fled to escape tarring and feathering.

  Washington believed he had a personal responsibility to enforce the law. Hamilton, Knox, and Attorney General William Bradford recommended calling out the state militias under federal control, while Randolph, then Secretary of State, urged reconciliation through a federal commission. Washington took both courses. The Constitution gives Congress the authority to provide for the calling of the militia to "execute the Laws of the Union, suppress Insurrections and repel Invasions." Under the 1792 Militia Act, the President can call out the militia once a federal judge finds that forces too powerful for the courts are blocking enforcement of the law.

  The administration provided the facts of the rebellion to Justice James Wilson, who made the required findings. On August 7, Washington issued a proclamation that the western Pennsylvania area was in a state of insurrection, ordered the rebels to return to their homes, and declared his intention to call out the militia. He ordered 12,500 troops from Maryland, New Jersey, and Virginia, in addition to Pennsylvania. Washington also sent commissioners to offer amnesty to any who would swear an oath to obey the laws. His strategy was remarkably successful: a large majority took the oath, while an army of nearly 13,000 (the popular call for troops met with more volunteers than asked) rode through the area in September. They found only 20 rebels, the rest having scattered.

  Washington had moved swiftly, issuing his proclamation and calling out the militia only six days after the attacks on federal officials began. He had not waited for federal judges to trigger the Militia Act, but instead went directly to Justice Wilson for a finding of insurrection. He had not consulted Congress, but instead limited discussion of the options to his cabinet, from whom he ordered opinions, and to the state governors, who had to supply the troops. His relationship with the governors is particularly instructive. Under the Articles of Confederation, the governors and legislatures of the states routinely ignored requests for legislation or supplies made by the Continental Congress. Washington turned this unhealthy relationship upside down. When Pennsylvania's governor claimed that a resort to force was unjustified, Washington responded that the nation's response would not depend on the state's views, and ordered him to supply militia to serve under federal command. Washington believed that when state governors enforced federal law, they were subordinate to him, even if he could not remove them.

  Washington led the army personally. He rode at the head of the troops, followed by Hamilton and the governor of Pennsylvania, in a show of the new government's strength. Washington's actions were remarkably popular, far more than anyone in his cabinet anticipated, and he followed them with a message to Congress that described the resistance as an insurrection, treason, and a challenge to federal authority.42 Congress so approved of Washington's careful use of his powers that it permanently reenacted the Militia Act in 1795 and removed the 1792 Act's requirement that the President seek judicial approval before calling out the militia -- all that was required now was a presidential proclamation.43

  A less dramatic, but equally revealing, episode in the aftermath of the Whiskey Rebellion further illustrates Washington's control of all aspects of federal law enforcement. Defending the modern independent counsel law, today's critics of executive power argue that prosecution does not fall within presidential control. They have pointed to the fact that in 1789, Congress created no Justice Department -- the Attorney General was the sole officer whose job was to advise the President and to represent the United States before the Supreme Court. In the first Judiciary Act, Congress placed the appointment of federal district attorneys in the courts and did not make them explicitly responsible to the Attorney General or the President. Washington did not believe this made federal prosecutors independent. After the Whiskey Rebellion, he ordered Pennsylvania's federal prosecutor to drop the cases against two rebels, and after his Neutrality Proclamation (to be discussed shortly), Washington directed U.S. attorneys to collect information and prosecute violators.44 This is not to say that Washington exercised the type of centralized control over prosecution that Presidents do today. Given the distances of communication and travel, local federal officials enjoyed a broad discretion that their modern counterparts can only dream of.45 Still, Washington believed he could issue direct orders to anyone who carried out federal law, and none of those on the receiving end appears to have disagreed.

  The handling of the Whiskey Rebellion rebels set another important law enforcement precedent that counterbalanced the legislature's plenary control over domestic legislation. Just as the President can direct the prosecution of cases to the letter of the law, he can also moderate the law's harshness. Washington's decision to drop the two Whiskey Rebellion cases made clear that he possessed the discretion to choose which cases to prosecute and which to let go. The executive branch would not seek to punish every infraction of federal law. Prosecutorial decisions would be based on a host of considerations, such as the resources available, deterrent effect, retribution, and the seriousness of harm. Under President Jefferson, these considerations would include disagreements with Congress over the policies and constitutionality of the criminal law. A President could refuse to prosecute offenders of a law that he believed violated the right to freedom of speech or religion, even if Congress disagreed.

  Washington's offer of amnesty also revealed an important presidential power -- to stay a mechanical application of the law to yield more important national benefits. The Constitution's grant of the pardon power could have been read to allow the President only to release individuals already convicted of a crime, though the historical evidence suggests that the Framers believed it would be used to offer rewards to criminal conspirators who cooperated with the government.46 Washington used the pardon power for a broader purpose, that of restoring order and allowing the government to show magnanimity. Nothing in the Constitution explicitly thrust these goals on Washington, but as Chief Executive he took the establishment of a strong government and the protection of the national interest to be his unique responsibilities. It is a sign of how strongly Washington shaped the office that even today we automatically assume that Presidents enforce the laws guided by their own understanding of the public good.

  PROTECTING THE NATION: FOREIGN AFFAIRS AND THE WARS OF EUROPE

  PRESIDENTS OWE THEIR privileged position in foreign affairs not to politics alone, but to the Constitution and to our first President. Washington established from the beginning that the executive branch would assume the leading role in developing and carrying out foreign policy. He did not go unchallenged. In defending Washington's foreign policy initiatives, Hamilton first publicly argued that the President is vested with all of the government's executive power, except that specifically transferred to another branch by the Constitution. Presidents ever since have taken the initiative in foreign affairs by relying on their constitutional powers.

  The Constitution's text does not explicitly grant much to the President beyond the undefined executive power, the Commander-in-Chief role, and the right to receive ambassadors. He must share the treaty and appointment powers with the Senate, while Congress receives the powers to declare war and issues letters of marque and reprisal (government permission to privateers to conduct hostilities against an enemy), to raise and fund the military, and to regulate foreign commerce, among other powers. There have been periods where early Presidents deferred to Congress's foreign policy leadership, though with poor results -- witness President Adams and the 1798 Quasi W
ar with France or President Madison and the War of 1812. Indeed, the conventional wisdom among many legal scholars is that the Constitution gives Congress control over foreign affairs, and that Presidents have inappropriately seized power over war and peace.47 As a practical matter, however, the President today can launch the nation into war without explicit congressional consent, enter or end international agreements, interpret international rules on behalf of the United States, and control diplomatic relations with other nations. These decisions, from President Truman's decision to wage the Korean War to Jimmy Carter's termination of the mutual defense treaty with Taiwan, have sparked political controversy and claims of presidential overreaching. It might not have been Washington's original intention to develop the executive so completely, because he devoted much of his first term to establishing the national government, appointing its officers, and fixing the nation's finances. When he turned to foreign affairs in the early months of his Presidency, he seemed to think that the Senate would perform the role of an advisory council on diplomatic matters. In contrast to his approach to appointments, where he considered the Senate's role to be limited to review of his nominations, Washington apparently believed that the Constitution required him to consult with the Senate before sending ambassadors to negotiate. As we will see, however, our first President quickly came to the conclusion that the executive would have to play the primary role in determining the nation's foreign policy.

  WAR POWERS

  WAR REMAINS ONE of the most hotly disputed questions in constitutional law today. Some claim that the original understanding of the Constitution requires Congress to authorize all wars because of its power to declare war. Defenders of the executive branch rely on the modern practice of Presidents launching significant wars without congressional authorization. Opponents of this view have relied on a 1793 statement by George Washington rejecting a plea that the United States attack the Creek Indians. "The Constitution vests the power of declaring war with Congress," Washington wrote to Governor William Moultrie of South Carolina, "therefore no offensive expedition of importance can be undertaken until after they shall have deliberated on the subject, and authorized such a measure."48 Some scholars claim this shows Washington's agreement that Congress must enact legislation authorizing all military hostilities abroad. David Currie, for example, concludes that the "first three presidents," Washington included, "took an appropriately narrow view of their authority as Commander in Chief," a view he believes was faithful to the decisions of the Constitutional Convention.49

  War in the early years of the Republic was not so simple. The administration sought Congress's cooperation when it needed increases in the size of the army, military spending, or the approval of agreements -- in other words, those areas where the Constitution specifically provided for a legislative role. When it came to political and military strategy, however, Washington and his advisors mostly acted alone. Under our first President, the United States waged war against only one enemy, the Indian tribes located in the neighborhood of present-day Ohio. By the time of the ratification, friction between Indians and American settlers in the West had grown, and some tribes had refused to respect the terms of the peace with Great Britain.50 British leaders, for their part, hoped that the Indians would create a buffer state that would limit American expansion in the Northwest. Washington and Knox pursued a peaceful settlement with the tribes, but they prepared for war.

  In 1789, it would have been impossible for Washington to conduct military operations without Congress's active cooperation. This was not because of the power to declare war; there simply were no troops for the President to command. After assuming office, Washington reported to Congress that the existing army numbered only 672 officers and soldiers, scattered across the frontier. By comparison, Indian tribes menacing Georgia could field 5,000 warriors for battle.51 Under the Articles of Confederation, Congress had established a force to protect the frontiers "from the depredations of the hostile Indians" and police the public lands.52 In order to wage any kind of campaign, Washington would have to convince Congress to create a standing army. Living in a world with a large peacetime army and navy, we easily forget that chief executives of the eighteenth and nineteenth centuries had to seek ad hoc creation of a military force to fight any significant conflict. Congress's power of the purse and its authority to establish the military gave it a functional veto over any war, and the ability to limit the nature of a conflict through the structure of the armed forces.

  Congress quickly provided for the continued existence of a small permanent army. It also gave the President the authority to call out the state militia "as he may judge necessary" to protect settlers against "the hostile incursions of the Indians,"53 but enacted no statute declaring war on the Indian tribes. Aside from the militia authorization, Congress placed no restrictions of any kind on the use of the regular armed forces. The natural conclusion is that Congress recognized the President's powers as Commander-in-Chief to decide how to use the forces once created. It is possible that Congress believed it was simply reauthorizing the army under the same conditions and purposes as that of the Confederation Congress, but we need not depend on inference. During the House debates, some in Congress objected to the bill's language because they believed it gave the President the unconstitutional power to start a war.54 Others wanted to add language to the bill to force a more aggressive strategy on the administration. Madison argued that Congress should not specify where troops should be based nor for what purposes they should be used. "By the Constitution, the President has the power of employing these troops in the protection of those parts [of the country] which he thinks requires them most."55

  Washington's actions in 1789 show that he believed that once Congress created the military, he had the authority to decide whether and how to use it. Even before Congress had approved the continuation of the regular army, the administration ordered General Josiah Harmar to begin disrupting Indian activities in the area of what would become Cincinnati. In October, Washington ordered Arthur St. Clair, governor of the Northwest Territory, to mobilize 1,500 militiamen and launch punitive operations against the Wabash and Illinois Indians, should they reject diplomatic overtures.56 These troops were not enough. Federalists had long thought that state militias performed poorly and were unreliable and badly trained. Knox believed that at least 2,500 regular troops would be needed to quell the hostile Indian tribes in the Ohio region.57 A few months later, Washington requested an increase in the permanent army to 1,200, and Congress obliged. Continuing its practice from 1789, Congress passed neither an authorization of hostilities nor a restriction on the use of regular troops.58

  Washington settled on war with the Indians in the Ohio region that summer. On June 7, 1790, Washington ordered Harmar and St. Clair to organize a punitive expedition into Indian territory to destroy bandits who were harassing settlements and apply pressure for a peace agreement. Washington soon expanded his aims: to field an army of 2,000 troops, roughly 1,600 of them militia, to attack the major villages of the Ohio tribes and to construct a permanent garrison to block their ties to the British.59 As military historian Richard Kohn has written, the "2,000 man, two-pronged expedition fully committed the military, political, and moral prestige of the United States government."60 Washington informed Congress about the scope of the Indian problems to justify increases in the army and the right to call out the militia, even going so far as to forward copies of his correspondence with St. Clair.61 But he sought no authority from Congress for his plan to drive more than 150 miles into enemy territory.

  The offensive met with disaster. In October, Harmar's expedition lost about 200 men in a battle with the Indians and withdrew back to base, leaving its dead, wounded, and arms behind. When news arrived in Philadelphia, disgust reigned. Washington ordered another offensive by a new army of 3,000 troops with plans to construct a series of forts throughout the Indian territories. He informed Congress of his intentions in a December 8, 1790, speech and requested another in
crease in the size and funding of the army.62Some members of Congress disliked the strategy, and others opposed the extra spending, but news of Indian massacres on the frontier overrode any opposition. The second expedition fared even worse: on November 4, a surprise attack by a force of 1,000 Indians completely destroyed St. Clair's force. The regular American army ceased to exist, and the western United States was laid open to attack -- it was the most devastating American military defeat since the early days of the Revolution.63

  When the news arrived in December 1791, the capital was stunned. Washington came under withering attack, and critics accused the administration of mismanagement, poor strategy and policy, and a failure of leadership. Washington and Knox decided to escalate with a large, professional army that could permanently defeat the tribes. Washington did not seek statutory authorization for offensive operations or a declaration of war, nor did he seek congressional ratification of his strategy, but he needed legislative cooperation to expand the military. Washington sent Congress a flood of information about the failed St. Clair expedition, conditions in the Northwest, and a request to quintuple the size of the standing army and triple military expenditures to roughly $1 million a year. Jeffersonians in Congress viewed the new military as yet another piece of the Hamiltonian plan to duplicate the corrupt British political, economic, and military system. Although opposition was fierce, and public dissatisfaction with the administration's Indian policy was widespread, Congress gave Washington what he asked for. It placed no limits on the use of the troops but did include a new restriction -- that the troops be demobilized "as soon as the United States shall be at peace with the Indian tribes."64 Jeffersonians also included some bitter medicine by conducting an investigation into the St. Clair disaster and issuing a report attacking the administration for mismanagement.65