Getting Started
History and Constitutional Background
Selection of the President and Term Limits
Presidential Succession
Head of State
Presidential Appointments
Presidential Responsibilities
Interaction with the Legislative Branch
Interaction with the Judicial Branch

The 19th Century Early Practice and Understanding

Nineteenth-century presidential practice and judicial decisions reaffirmed this  original understanding of the war power and the President’s role as Commander in Chief.  Early presidents often refused to initiate hostilities without prior authorization from Congress. In 1792 and 1793, President George Washington  received urgent requests for the use of military force from governors who feared impending attacks by Native Americans.  Washington stated that he had no authority to order an attack and deferred the issue to Congress, “who solely are vested with the powers of war.” Contrary to the charge that President John Adams acted unilaterally in the Quasi-War with France of 1798-1800, Congress, in fact, passed some 20 statutes to authorize the war.  In Bas v. Tingy (1800), the Supreme Court held that those statutes had authorized imperfect, or limited, war.  In Talbot v. Seeman (1801), a case that involved issues arising from the Quasi-War, Chief Justice John Marshall held that since the “whole powers of war” are “vested in Congress,” it is for that body alone to authorize perfect or imperfect war. In Little v. Barreme (1804), Marshall emphasized that the President, as Commander in Chief, is subject to statutory restriction. One of the statutes passed by Congress in the Quasi-War with France authorized the President to seize vessels that sailed to French ports. But President Adams ordered American ships to capture vessels which sailed to or from French ports, and, in his opinion for the Court, Marshall held that Adams’s order had violated the statute. Subsequent judicial rulings have reiterated that the Commander in Chief may be controlled by statute. Chief Justice Marshall’s opinion was especially significant since it trumpeted the very principle embedded in the appointment by the Continental Congress of George Washington as Commander in Chief of America’s military forces in the American Revolutionary War, to wit:  the Commander in Chief is required to obey instructions and directions from Congress.

Thomas Jefferson and the War Clause

President Thomas Jefferson understood the limitations of the Commander in Chief Clause. In 1801, in his first annual message to Congress, he reported the arrogant demands made by Joseph Caramanly, the pasha of Tripoli. Unless the United States paid tribute, the pasha threatened to seize American ships and citizens. In response, Jefferson sent a small squadron to the Mediterranean to protect against the threatened attack. He then asked Congress for further guidance, since he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.” It was left to Congress to authorize “measures of offense.” Jefferson’s understanding of the War Clause underwent no revision. Like Jefferson, President James Madison was aggrieved by the punishment and harassment inflicted on United States vessels. In 1812, he expressed to Congress his extreme resentment of the British practices of seizing American ships and seamen and inducing Indian tribes to attack the United States. Madison complained, but said the question of “whether the United States shall remain passive under these progressive usurpations and these accumulating wrongs, or, opposing force, to force in defense of their national rights” is “a solemn question which the Constitution wisely confides to the legislative department of the Government.”

The War of 1812

Madison, the leading architect of the War Clause and, indeed, the Constitution, had led the way to vest in Congress, not the President, the authority to initiate hostilities.  He remained throughout his career a paragon of consistency on the question of the constitutional repository of authority to commence war or lesser military hostilities. In 1793, Madison, in the context of a debate with Hamilton on issues arising out of the “Genet Controversy,” provided a powerful summation of the Framers’s design of the War Clause.  “Every just view that can be taken of this subject,” he wrote, “admonishes the necessity if a rigid adherence to the simple, the received, and the fundamental doctrine of the constitution, that the power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite or proper.”  On this issue, there was very little difference between Hamilton and Madison, even after Hamilton had moved from a narrow to a broader view of executive power.  Hamilton emphasized that it is the “exclusive province of Congress, when the nation is at peace, to change that state into a state of war . . . it belongs to Congress only, to go to war.  But when a foreign nation declares or . . . makes war upon the United States . . .any declaration on the part of Congress . . . is at least unnecessary.”  

As President, in the War of 1812, as we have seen, Madison deferred to Congress on the question of using military force and declaring war against England. He asserted no unilateral powers and did not push the limits of his authority. His reaction to British outrages reflected what the Framers assumed a President would do in circumstances where the possibility of war would arise: refer the question of a response to the legislative branch, which possesses the war power.

The Monroe Doctrine

Following his 1823 announcement of what has become known as the Monroe Doctrine, President James Monroe was confronted with international circumstances that seemed to invite the use of force, but Monroe consistently disclaimed any constitutional power to initiate hostilities since, he maintained, that authority was granted to Congress. After adoption of the Monroe Doctrine, Colombia, in 1824, sought protection from France. Monroe, who was a participant in the Virginia ratifying convention, stated in a letter to Madison, which echoed the words of the Father of the Constitution:  “The Executive has no right to compromit the nation in any question of war”; and his Secretary of State, John Quincy Adams, replied to Colombia that “by the Constitution . . . the ultimate decision of this question belongs to the Legislative Department.”