War Powers:
An Introduction
"Burning of the Frigate Philadelphia
in the Harbor of Tripoli,
February 16, 1804"
Artemus Ward
Department of Political Science
Northern Illinois University
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)
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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
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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
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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
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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)
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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.
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.
(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?