Crisis and Command: A History of Executive Power from George Washington to George W. Bush (13 page)

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,"
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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.
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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."
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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.
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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.
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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.
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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.
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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."
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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.
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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 increase in the size and funding of the army.
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Some 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.
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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."
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Jeffersonians also included some bitter medicine by conducting an investigation into the St. Clair disaster and issuing a report attacking the administration for mismanagement.
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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.
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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!"
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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.
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Three decades would pass before the Supreme Court classified the Indian tribes as semi-sovereign, dependent nations.
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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."
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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.
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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.
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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.
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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."
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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.