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

by John Yoo

  FOREIGN AFFAIRS: WAR

  IT IS IN FOREIGN AFFAIRS that fans of Jefferson can make their best claim for his inclusion in the list of greatest American Presidents. While Jefferson used his powers as Commander-in-Chief to wage a successful offensive against the Barbary states -- inspiring the lyric "to the shores of Tripoli" -- his most important presidential act involved an exchange of property rather than cannon shot.

  Despite his earlier attacks on executive power, Jefferson did not seek to withdraw the President's powers in war. Jefferson had planned to reduce the federal budget by cutting the military to the bone, but events caused him to depend on the navy maintained by the Adams administration. The immediate cause was relations with the Barbary pirates. Although history remembers them as bandits, they did in fact inhabit autonomous regions -- Algiers, Tripoli, and Tunis -- within the Ottoman Empire, and an independent nation, Morocco. Their leaders preyed upon the shipping of other nations, seized their cargos, and sold their sailors into slavery. Under the Continental Congress, the United States had paid tribute (amounting to $10 million under Washington and Adams) to allow American shipping to proceed unhindered.23 Jefferson's accession to the Presidency coincided with demands for higher payments and the impressment of a U.S. Navy frigate by the Dey of Algiers.

  Having long disliked paying the Barbary tribute, Jefferson decided to send the Navy to put an end to the insults to American shipping. In a meeting on May 15, 1801, the cabinet unanimously agreed that Jefferson should send a squadron to the Mediterranean as a show of force. No one in the cabinet, including Madison and Gallatin, believed that the President had to seek congressional permission to order the mission. The only legislative action was a statute enacted on the last day of the Adams administration, requiring that at least six existing frigates (American frigates at this time were the best in the world) be kept in "constant service" -- an effort to prevent Jefferson from reducing the navy to zero. Jefferson and his cabinet thought that the statute could be read to allow the President to send a "training mission" to the Mediterranean. The cabinet also agreed that the President had constitutional authority to order offensive military operations, should a state of war already be in existence because of the hostile acts of the Barbary powers. "The Executive cannot put us in a state of war," Gallatin said, "but if we be put into that state either by the decree of Congress or of the other nation, the command and direction of the public force then belongs to the Executive."24 Jefferson and his advisors believed that the Constitution only required Congress to declare war to undertake purely offensive operations against a nation with which the United States was at peace. As Abraham Sofaer has observed, Jefferson and his advisors assumed they had the authority for the expedition simply by virtue of Congress's creation of the navy forces that made it possible -- a position no different from that taken by President Washington in the Indian wars.

  Jefferson was clear on this in his orders to the naval commanders. The Secretary of the Navy ordered Commodore Richard Dale to proceed to the Mediterranean and, if he found that any of the Barbary states had declared war on the United States, to "chastise their insolence" by "sinking, burning, or destroying their ships & vessels wherever you shall find them."25 Dale could impose a blockade and take prisoners, going well beyond simply protecting American shipping from attack. Upon arriving and discovering that the Bashaw of Tripoli had declared war, Dale issued orders to his squadron to attack any and all Tripolitan vessels. Lieutenant Andrew Sterett, commanding the 12-gun schooner Enterprise, encountered a 14-gun Tripolitan corsair on a resupply mission to Malta in August 1801. The Enterprise fought for three hours and killed half the corsair's crew, cut down its masts, threw its guns overboard, and set it adrift. Sterett could not keep the prize, because he was on the outward leg of his resupply mission, but his actions produced broad approval in the United States and a joint resolution applauding the crew.26

  The President portrayed his orders differently to Congress in December 1801. He claimed that he had not authorized offensive operations, that Sterett had acted in self-defense, and that the Enterprise had released the corsair because Congress had not authorized offensive operations. "Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel, being disabled from committing further hostilities, was liberated with its crew."27 While some scholars have viewed Jefferson's words as presidential acceptance of Congress's control over war, Jefferson did not accurately represent Sterett's attack, the decision to release the captured warship, or the nature of the orders to Commodore Dale, nor did he reveal his thinking or that of his cabinet when those orders were cut. Jefferson followed by requesting that Congress authorize offensive operations. During the subsequent congressional debates, no one questioned the constitutionality of Jefferson's orders to the Mediterranean squadron, and several Congressmen argued that the President had the power to order hostilities because of the existing state of war. Congress ultimately chose to delegate broad powers to Jefferson to take whatever military measures he thought necessary as long as war continued.28

  Jefferson's message to Congress presents an example of a President's rhetoric not matching his actions. He claimed a constitutional limitation on presidential power that neither he nor his cabinet had previously raised, though one that ran in favor of Congress. He had sent American forces into a hostile area and ordered them to undertake offensive actions without any plausible congressional authorization. On the other hand, Jefferson did not act as aggressively as Presidents today. His orders to attack Tripoli responded to a declaration of war by the enemy. He could justify his orders on the ground that Congress had created the forces and that a state of war already existed, the position taken by the cabinet and supported by Hamilton in a newspaper essay. According to Hamilton, "[W]hen a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary."29 Hamilton had things right as a matter of international law at the time, and most agree that he was correct on the Constitution. Presidents should not have to wait to seek authorization from Congress when another nation has already attacked or declared war upon the United States.

  Efforts to solve the Barbary problem turned to another form of warfare, covert action. Shortly after the dispatch of the squadron to the Mediterranean, the American consul at Tripoli suggested that the United States help the brother of the Pasha to overthrow the government. In August 1802, Madison authorized American naval and diplomatic personnel to cooperate with the brother, and in May 1804 the cabinet voted to provide him with $20,000. The American consul at Tunis provided another $10,000, helped the pretender to the throne assemble a mercenary army, and ordered the Navy to transport him covertly to Tripolitan territory. The brother captured one of Tripoli's major cities in 1805, forcing a peace treaty with the United States that freed American prisoners, granted privileges to U.S. shipping, and ended the war. While Jefferson's actions certainly fell within Congress's broad authorization to "cause to be done all such other acts of precaution or hostility as the state of war will justify, and may, in [the President's] opinion, require," the President chose not to inform Congress of these secret measures until six months after the peace treaty was signed. No one objected, and Congress even bestowed a tidy sum on the brother for his cooperation.30 Jefferson would set the precedent for future covert action against threats to national security, with Congress's main check remaining the power of the purse.

  Jefferson acted with swiftness during another military confrontation, this time with Great Britain. On June 22, 1807, the British warship HMS Leopard stopped the smaller American frigate USS Chesapeake as it was leaving Norfolk, Virginia. The Leopard was under orders to search for British deserters hiding on American vessels. When the Chesapeake's captain refused to allow a search, the Leopard fired on the unprepared ship, killing three and wounding 18, and then removed four alleged deserters. The attac
k provoked outrage throughout the country and prompted demands for war. Without consulting Congress, which was not in session, Jefferson ordered all American waters closed to British warships. He redirected funds for the nation's fortifications devoted to New York, Charleston, and New Orleans and ordered the purchase of significant amounts of military stores and ammunition, including materials to construct 100 gunboats. Jefferson also sent orders to James Monroe in London to demand reparations and punishment of the Leopard's commander. When Congress convened in October, Jefferson did not claim that the purchases were legally authorized, but instead sought after-the-fact approval because the "emergencies facing us" justified his actions. Jefferson relied on the power to act in moments of crisis to defend the nation, even in areas like spending, which the Constitution had specifically given to Congress. Congress agreed and voted overwhelmingly to appropriate the funds that Jefferson had already spent.31

  THE LOUISIANA PURCHASE

  WHILE FULL OF daring exploits, war with the Barbary pirates was not the central concern of American national security policy. America's future depended on relations with Great Britain, France, and Spain, which held the key to neutrality and westward expansion. Spain controlled New Orleans, through which exports using the Mississippi had to pass. Without access to the Mississippi, transporting goods over land from Ohio to the East took longer than sailing from New York to London. The British Empire was America's primary trading partner, receiving about 50 percent of its exports, and the Royal Navy effectively controlled the Atlantic. France was also an important trading partner -- Americans had grown rich selling goods to the antagonists during the latest round of European wars -- and it controlled the Louisiana territory to the West.

  Jefferson's purchase of Louisiana defused this hazardous situation. He avoided war with France and Spain and doubled the size of the nation. He made possible the fulfillment of Republican political economy and foreign policy: to conquer the territory to the West without war, open Western settlement by controlling the Mississippi, and maintain America's neutral status. The Louisiana Purchase created the possibility that Jefferson's "empire of liberty" would be continent-wide, but it required Jefferson to put aside his vision of strict constitutional construction and adopt a broader vision of executive power, one that permitted the nation to take advantage of the great opportunities thrown its way.

  While it was not the product of luck, the Louisiana Purchase must have seemed like the intervention of Fortune in the fate of the Americans. The retrocession of Louisiana back from Spain to France (France had lost the territory to Spain at the end of the Seven Years' War) gave Napoleon dreams of an American empire. An expedition to restore control in Santo Domingo, which had been taken over by a slave rebellion led by Toussaint L'Ouverture, failed. Another mission to send troops to Louisiana could not leave port due to winter ice, and in late 1802 Spanish officials closed the port of New Orleans to American shipping while they awaited the handover of the territory to France. Jefferson sent envoys to Paris to buy New Orleans and West Florida (which today comprises the portions of Mississippi and Alabama that lie along the Gulf of Mexico, along with parts of Florida and Louisiana), aided by a secret congressional appropriation of $2 million. Federalists proposed negotiating from a position of strength by invading New Orleans and West Florida first,32 but Jefferson privately had been willing to go even further, entertaining a possible alliance with the hated British against France to seize Louisiana.

  When American ministers arrived in Paris, they received a gift. Napoleon decided to sell not just New Orleans, but the entire Louisiana territory. The first ambassador on the scene, Robert Livingston, did not believe the offer was genuine, but when the second envoy, James Monroe, arrived, they quickly decided to exceed their instructions and buy all of Louisiana for about $15 million. The Louisiana Purchase doubled the size of the United States, gave it permanent control of the Mississippi and New Orleans, and dislodged France and Spain as serious threats to American national security in the West. "This removes from us the greatest source of danger to our peace," Jefferson wrote to his son-in-law.33 Played differently, the United States could have been drawn into the Napoleonic wars, which would have proven disastrous, and found itself hemmed into the Eastern seaboard. Jefferson's reputation as one of America's greatest Presidents was sealed on the day that the Louisiana treaty was signed.

  But in order to buy Louisiana, Jefferson had to change his vision of the Constitution. Jefferson had believed that the Constitution did not permit the acquisition of new territory or its incorporation into the Union as new states. The Constitution has no express provision providing for the addition of territory, though Article IV, Section 3 gives Congress the power to "dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Some later argued that this clause assumes that new property could be added in the future, but as Gary Lawson and Guy Seidman have pointed out, this interpretation runs counter to the text of the clause and its placement in the Constitution.34 The clause describes the power to make rules and dispose of property, but it does not empower the government to add new territory in the first place -- it could be read to apply only to the territory of the United States as it existed in 1789, such as the Northwest Territory. Even before he sent Monroe to negotiate for New Orleans, Jefferson had raised doubts before his cabinet.

  Jefferson also doubted whether new territory could become states. The Constitution provides for the addition of new states, upon the approval of Congress, and it prohibits the formation of new states out of the borders of existing states without their consent. Jefferson apparently worried that this prohibition also applied to the creation of new states from the territory of existing states. His Attorney General, Levi Lincoln, agreed and advised that the boundaries of existing states be enlarged to include the Louisiana Purchase.

  Jefferson and his cabinet sought refuge in a position that was "virtually indistinguishable" from Hamilton's arguments in the debates over the Neutrality Proclamation and the Jay Treaty. Gallatin argued:

  The United States as a nation should have an inherent right to acquire territory.

  Whenever that acquisition is by treaty, the same constituted authorities in whom the treaty-making power is vested have a constitutional right to sanction the acquisition.

  Whenever the territory has been acquired, Congress should have the power either of admitting into the Union as a new state, or of annexing to a State with the consent of that State, or of making regulations for the government of such territory.35

  In other words, the federal government has powers that extend beyond those explicitly set out in the Constitution, including the sovereign powers held by all other nations. Gallatin claimed that the treaty power vested the federal government with the ability to exercise these inherent national powers. This broad reading of the executive power allows the President and Senate together to exercise power that is nowhere set out in the Constitution but must be deduced by examining the rights of other nations in their international affairs. As the primary force in treaty-making, this power would redound to the President's benefit. Gallatin's opinion concluded that the people had implicitly delegated the authority to acquire territory to the national government by vesting it with the powers to make war and treaties, and govern the territories.

  This was strong drink for a man who believed that the Constitution did not allow a national bank. Jefferson accepted Gallatin's reasoning, though he predicted that new territory would enter the Union as a matter of "expediency" rather than constitutional principle. Perhaps he felt he was making only a small compromise when all that could be hoped for was New Orleans. When Jefferson learned that Livingston and Monroe had succeeded beyond his wildest dreams, the constitutional doubts resurfaced. To John Dickinson, he admitted in August 1803 that "our confederation is certainly confined to the limits established by the revolution. The general government has no powers but such as the constitution has given it; and it
has not given it a power of holding foreign territory, and still less of incorporating it into the Union." He confessed that "an amendment to the Constitution seems necessary for this."36 Jefferson did not limit himself to private letters to friends, but expressed his views to his close ally in the Senate, John Breckinridge of Kentucky. "The Executive in seizing the fugitive occurrence which so much advances the good of the country, have done an act beyond the Constitution," Jefferson wrote in August.37 It was now up to Congress to support the unconstitutional act. "The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify & pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it." Jefferson believed it was best to admit openly the violation of the Constitution and seek popular support, which he believed was healthier for the constitutional system. "We shall not be disavowed by the nation," he predicted, "and their act of indemnity will confirm and not weaken the Constitution, by more strongly marking out its lines."

  Jefferson even personally drafted at least two constitutional amendments adding Louisiana, but events forced him from the luxury of his strict-constructionist beliefs. Shortly after he wrote to Dickinson and Breckinridge, Jefferson received a dispatch from Livingston in Paris that Napoleon was having seller's remorse. Livingston reported that Napoleon would seize any delay or request for changes as an opportunity to renounce the agreement. Jefferson worried that the delay of a constitutional amendment would give France the opening it needed, though both Madison and Gallatin thought France would not back out, and no one in the cabinet thought a constitutional amendment was necessary. Jefferson sent letters to Congress asking that constitutional objections to the treaty be dropped, and that "nothing must be said on that subject which may give a pretext for retracting; but that we should do sub silentio what shall be found necessary."38