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

by John Yoo

  The 5,000-man army brought victory. Washington ordered General "Mad Anthony" Wayne to undertake offensive operations against the Indians (he was even authorized to attack the British forts in the area, if assured of "complete success"). Diplomatic overtures failed because their success and British encouragement had convinced the tribes to seek complete American withdrawal from the Ohio region. Wayne spent all of 1792 and early 1793 assembling and training his army, even as Jeffersonians in Congress attacked the administration's strategies and attempted to cut the size of the regular army in half. In August 1794, Wayne won a decisive victory at the Battle of Fallen Timbers, which permanently broke Indian military resistance in the area. Historians today credit the battle with opening up large-scale settlement of the Northwest Territory and ending British efforts to hem in American expansion. It was a resounding success for Washington's Indian policy and vindicated his reliance on a professional military establishment.

  Washington's success in the Indian wars did not follow a simple process of Congress's declaring war first, followed by executive implementation of war policy. Congress never authorized offensive military operations; at most, it had allowed the President to call out the state militia to defend settlers from Indian attacks. A more complex process took hold, one characterized by presidential initiative and leadership, balanced by congressional control over the size and shape of the military. Washington and his advisors decided on the mix of negotiations and force, the timing of offensive attacks, and the overall strategy. Congress respected Washington's discretion to make these decisions, but it had a veto through its control over the organization and growth of the military. If it had wanted to favor diplomacy, Congress could have limited the army to 1,000 troops or fewer. Congress's power to control the President's initiatives came not through formal legislation or declarations, but via its monopoly over funding.

  In most areas of domestic affairs, Washington played a relatively passive role and left matters to Congress, but not so with military affairs. From the very first bill continuing the 700-man army through the expansion to a regular army of 5,000, the Washington administration took the initiative without fail. Each increase was first developed and then proposed by the executive branch, and while some in Congress had a different view -- particularly over the balance between regular army and militia troops -- the legislature as a whole never refused the Commander-in-Chief's requests. In the Republic's earliest years, Washington set an example of executive leadership upon which future Presidents would draw. At the same time, Washington took all of the political responsibility for the success or failure of the Indian wars, and Congress displayed little eagerness to fight him for it. Blame for the crushing defeat of St. Clair's forces was laid wholly at the administration's doorstep, but at the same time Congress deferred to the President's request for more troops to undertake even more ambitious operations. Presidential power allowed Washington to take the initiative when the nation's security and interests demanded it, but it also bore with it the heavy responsibility for failure as well as success.

  Some might argue that these military conflicts have little constitutional significance because they involved the Indians, rather than nations.66 But by all indications, the Washington administration acted as if the normal rules of war and diplomacy applied. In cabinet meetings on military strategy, President Washington declared that "we are involved in actual war!"67 Indians in the Ohio region could field a military force as large as the United States Army, while the tribes in Georgia had a force five times greater at their command. When the Washington administration wanted to reach a negotiated settlement, it considered the agreements to be treaties and submitted them to the Senate for consent.68 Three decades would pass before the Supreme Court classified the Indian tribes as semi-sovereign, dependent nations.69 Winning the conflict with the Indians was critical to America's national security, and the government treated it as the war that it was.

  CONSENT BUT NOT ADVICE

  ON SATURDAY, AUGUST 22, 1789, even before Congress had created a Secretary of State, Washington personally visited the Senate to take its temperature on a possible Indian treaty. With Knox in tow, the President came prepared with a short paper on the problem and a list of seven questions he wanted answered by the Senate. As Vice President Adams read the questions aloud, street noise from outside disrupted the proceedings. Adams repeated the questions again. Senators asked that all relevant treaties and related documents be read aloud, and then asked for the questions again. Senator William Maclay of Pennsylvania moved that the whole matter be referred to a special committee. Washington lost his temper, jumped up, and left the chamber with the words: "[T]his defeats every purpose of my coming here." Some report that Washington muttered as he stormed out that "[I] would be damned if [I] ever went there again."70 Apparently, he returned the very next Monday, and the Senate agreed to all of his questions, but no President, Washington included, ever again consulted in person with the Senate.

  By trying to include the Senate, Washington revealed that it was ill-designed to play a formal role in treaty negotiations. Because international politics required secrecy and subtlety, the Senate's formal function in the future was limited to consent, but not advice. This episode also demonstrated, as Stanley Elkins and Eric McKitrick have observed, that the President was more than simply a prime minister. To be effective, the office required a certain level of prestige and independence that precluded a personal appearance before the Senate for permission to conduct negotiations. Washington's instinct to take firm control over the nation's diplomatic relations cemented this institutional dynamic. Upon taking office, Washington began to issue directions to John Jay, then Foreign Minister under the Articles of Confederation, and immediately dictated diplomatic relations with other nations.71 He assigned ambassadors to their missions, subject to Senate confirmation, and issued their instructions, removed them when necessary, and sometimes sent special envoys without senatorial advice and consent.72 In creating and funding the State Department, the First Congress recognized the President's special rights in foreign affairs by not delegating any duties to the Secretary of State other than those assigned to him by the President. As Sai Prakash and Michael Ramsey have argued, there would have been no need for the Secretary if the President did not already have a preexisting foreign affairs power.73 Congress funded the department simply by appropriating a lump sum and leaving pay and employee grades to executive discretion.

  Washington wanted to protect his authority to set the rank of diplomatic officials and asked the Secretary of State for his opinion. Jefferson responded, "The transaction of business with foreign nations is executive altogether."74 The only exceptions were those functions given to the Senate, which were "to be construed strictly" in favor of the President's authority. Which envoys to send, where to send them, their diplomatic grade, and their instructions, both public and secret, Jefferson concluded, "all this is left to the President; [the Senate] is only to see that no unfit persons be employed." The stuff of ambassadorial rank and negotiating records may seem trivial today, but in the eighteenth century they were the main instruments of foreign policy. Nations sent ambassadors on missions to negotiate agreements with instructions that left them a few goals and great flexibility on the terms; an ambassador's diplomatic rank signaled his nation's attitude toward a country. In 1794, Washington sent John Jay, the former foreign minister and Chief Justice at the time, to Britain with instructions to reach the best settlement possible of America's outstanding differences. His choice sent a strong signal that the United States wanted an amicable relationship. Echoing Madison's arguments during the removal debates, Jefferson believed these decisions fell within the President's authority because foreign affairs remained executive in nature.

  Jefferson would regret his support of executive authority as he came to oppose Washington's foreign policies toward France and Great Britain. The beginning of the French Revolution in 1789 set off wars in Europe that would last a quarter-century. Eventually,
the United States became entangled and barely escaped with its independence intact. But Washington kept the United States out of the conflict, giving the nation time to develop its strength and confidence. In guiding the young republic between the Scylla and Charybdis of Britain and France, he imposed a policy of neutrality based on the constitutional understanding that he held the authority to set foreign policy, interpret and even terminate treaties, and decide the nation's international obligations. Washington paid a steep price: his policies divided his government, sparked the creation of the first political party, and turned future presidential elections into partisan affairs. Neutrality in the European wars ruined Washington's hopes for a government ruled by consensus and left him disgusted with politics.

  After the beheading of King Louis XVI, France declared war on Great Britain and Holland on February 1, 1793.75 Edmund Genet, the new regime's ambassador to the United States, arrived two months later. News of war threw the American government into a quandary over the 1778 treaties with France, which had been crucial to the success of the Revolution. Article 11 of the Treaty of Alliance called on the United States to guarantee French possessions in the Americas, which implied that the United States might have to defend France's West Indies colony (today's Haiti).76 Article 17 of the companion commercial treaty gave French warships and privateers the right to bring captured enemy ships as prizes into American ports.77 Article 22 prohibited the United States from allowing France's enemies to equip or launch privateers or sell prizes in American ports.

  Genet attempted to rouse the American people against Britain. Demanding that the United States honor the treaties, he authorized American ships to raid British shipping. The cabinet split over a response. Jefferson deeply hated Great Britain, admired the French Revolution, and suspected Hamilton of duplicating the British political system. For his part, Hamilton loathed the French Revolution, and his financial system depended on good relations with Britain. Upon learning of the French declaration of war, Hamilton, "with characteristic boldness," immediately urged Washington to suspend or terminate the treaties.78 The young Treasury Secretary simply could not help meddling in the affairs of others, especially those of the Secretary of State. Hamilton believed that Britain's control of the seas and its trading system made good relations with London paramount. While a change in government did not automatically void treaties with another state, he argued that the uncertain status of the French government and the dangerous wartime situation allowed suspension of the treaties.79 While Jefferson agreed that military participation in the European war was out of the question, he believed the United States was obliged to fulfill the treaties. (Under the Articles of Confederation, he had served as minister to France.)

  On April 18, Washington sent a list of 13 questions to Hamilton, Jefferson, Knox, and Randolph and ordered a cabinet meeting for the next day -- establishing a regular mechanism of presidential decision-making.80 Almost all of Washington's questions involved the interpretation of the 1778 treaties. Question four, for example, asked: "Are the United States obliged by good faith to consider the Treaties heretofore made with France as applying to the present situation of the parties?" Washington ordered them to give an opinion on whether Article 11 applied to an offensive war launched by France, whether the United States could both observe the treaties and remain neutral, and under what conditions the United States could suspend or terminate the treaties.

  Washington's questions produced a deceptive unanimity in the cabinet. Everyone agreed that a proclamation of neutrality should be issued, but in order to assuage Jefferson's concerns, the word "neutrality" was not used. Indeed, given the distance of the United States, its military weakness, and its strategic irrelevance to the European theatre, neutrality was the only realistic option. Two other questions received the same unanimity. The cabinet agreed that the President should receive Genet as France's ambassador, making the United States the first nation to recognize the government of revolutionary France. The members further agreed that consulting Congress was unnecessary. The executive branch would decide the nation's position on the European wars. Adjourning the meeting without reaching the other questions, Washington asked his advisers to submit written responses on whether to suspend or terminate the 1778 treaties.

  No one in the cabinet disputed that the President held this power under the Constitution. On April 28, Jefferson, later joined by Randolph, argued that international law did not permit the suspension or annulling of a treaty because of a change in government.81 Because he believed that France was unlikely to ask the United States to defend the West Indies, Jefferson recommended that the administration do nothing. On May 2, Hamilton and Knox argued that the civil war in France allowed the United States to suspend the treaty, or even terminate it because of the new circumstances threatening American national security.82 They read the treaty to apply only to defensive wars, not to one in which France had attacked first. Telling Jefferson that he "never had a doubt about the validity of the treaty," Washington decided against suspension the next day.83 On the question of the West Indies, Washington decided to remain silent, a wise choice, as Jefferson's prediction proved correct and France did not seek American aid.

  Washington issued his decision in a proclamation drafted by Randolph.84 Recognizing a state of war between France and the other European powers, he announced that the United States "should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerant [sic] Powers." Washington further saw fit to "declare the disposition of the United States to observe the conduct aforesaid towards those Powers respectfully" and "to exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition." The proclamation also stated that the federal government would prosecute those who "violate the law of nations, with respect to the Powers at war." His proclamation was a determination that American obligations did not require entry into the war on the side of the French. After a year, Congress implemented his interpretation into domestic law by making it a crime for a citizen to violate American neutrality.85

  Although the Continental Congress had negotiated and ratified the 1778 treaties, Washington never asked about its intentions.86 None of his cabinet members wanted to interpret the treaties in the light most favorable to France. Both Hamilton and Jefferson grounded their appeals in the national interest, international law, and common sense. Neither expressed a belief that consultation with Congress or the Senate was necessary or advisable. Washington and his cabinet proceeded on the assumption that it was the province of the executive branch to interpret treaties, and so set foreign policy, on behalf of the United States. They even believed that the President had the authority to terminate the 1778 treaties. Hamilton argued that the President could terminate if necessary, but recommended only suspension. Fighting a rearguard action, Jefferson did not raise a constitutional objection. Even though Hamilton convinced Washington to declare neutrality, it is doubtful that Jefferson could have produced any other outcome -- the United States simply was not going to enter the war on France's side, at least not for another two decades.87

  The proclamation provoked one of the great constitutional debates in American history. In a series of newspaper articles that summer, Hamilton adopted the pseudonym of "Pacificus" to defend the President's constitutional authority.88 Hamilton began with the position that foreign policy was executive by its very nature. Congress was not the "organ of intercourse" with foreign nations, while the judiciary could only "decide litigations in particular cases." Declaring neutrality, therefore, must "of necessity belong to the Executive." It drew from the executive's authority as "the organ of intercourse between the Nation and foreign Nations," as "interpreter of the National Treaties in those cases in which the Judiciary is not competent," and as enforcer of the law, "of which treaties form a part." Hamilton argued that treaties, as well as the rules of international law, were part of the laws to be carried out
by the executive, and "[h]e who is to execute the laws must first judge for himself of their meaning." Last, but not least, Hamilton believed the executive could declare neutrality because of its "Power which is charged with the command and application of the Public Force."

  Basing his claims on the constitutional text, Hamilton argued that the President's authority derived from Article II, Section 2's grant of the executive power. The Constitution already made the President Commander-in-Chief, maker of treaties with the advice and consent of the Senate, receiver of ambassadors, and executor of the laws. But "it would not consist with rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant contained in the general clause." Article II's enumeration of powers "ought...to be considered as intended...to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power...." For Hamilton, the Senate's role in making treaties was only a narrow exception from the general grant of executive power to the President and "ought to be construed strictly." When the Constitution sought to transfer traditionally executive powers away from the President, it did so specifically, as with the power to declare war. "The general doctrine then of our constitution is, that the Executive Power of the Nation is vested in the President," Hamilton concluded, "subject only to the exceptions and qualifications which are expressed in that instrument."

  Madison, however, expressed surprise and concern over the President's Proclamation of Neutrality. In a letter to Jefferson, Madison claimed Hamilton had talked Washington into an "assumption of prerogatives not clearly found in the Constitution and having the appearance of being copied from a Monarchical model."89 His immediate criticism was that the proclamation intruded on Congress's power to declare war. Jefferson explained that although he had agreed in the cabinet that the President could declare neutrality without consulting Congress, that he nonetheless held constitutional concerns. When Hamilton's Pacificus essays -- defending the President's power to declare neutrality -- appeared in the press, Jefferson begged Madison: "For God's sake, my dear Sir, take up your pen, select the most striking heresies and cut him to pieces in the face of the public."90