What counts as the first presidential war—the practice of Presidents waging war without prior congressional sanction? In the wake of President Donald Trump’s attacks on Syria, the Office of Legal Counsel opined that unilateral presidential war-making dates back 230 years, to George Washington. The Office claimed that the first President waged war against Native American tribes in the Northwest Territory without first securing congressional authorization. If true, executive war-making has a pedigree as old as the Constitution itself. Grounded in a systematic review of congressional laws, executive correspondence, and rich context of the era, this Article evaluates the claim that our first President waged war in reliance upon his constitutional authority. In fact, there is little that supports the bold claim. Congress authorized war against Northwestern tribes raiding frontier settlements. In other words, Congress exercised its power to declare war and did, in fact, declare war, albeit without using that phrase. Moreover, Washington and his cabinet repeatedly disclaimed any constitutional power to wage war without congressional sanction, making it exceedingly unlikely that he waged war of his own accord or in sole reliance on his constitutional powers. Washington’s abjurations of power should make executive-branch lawyers blush, for the Commander in Chief and his celebrated advisors, including Alexander Hamilton, Thomas Jefferson, and Henry Knox, consistently observed that Presidents could not take the nation to war and, therefore, could not sanction offensive measures, including attacks. The Constitution’s First War was a congressional war through and through, just as the Constitution requires. It was not a presidential war and cannot be cited as a long-lost precedent for presidential wars in Korea, Libya, or Iran.
Introduction
In January of 2020, the United States killed Qasem Soleimani.1 1.Merrit Kennedy & Jackie Northam, Was It Legal for the U.S. To Kill a Top Iranian Military Leader?, NPR (Jan. 4, 2020), https://www.npr.org/2020/01/04/793412105/was-it-legal-for-the-u-s-to-kill-a-top-iranian-military-leader [https://perma.cc/K5E6-8BZE]; Oona A. Hathaway, The Soleimani Strike Defied the U.S. Constitution, Atlantic (Jan. 4, 2020), https://www.theatlantic.com/ideas/archive/2020/01/soleimani-strike-law/604417/ [https://perma.cc/2268-2TQX].Show More Soleimani was Iran’s second-most powerful leader and responsible for killing many American military personnel. The drone strike touched off praise and censure, including doubts about its constitutionality.2 2.Rand Paul (@RandPaul), Twitter (Jan. 3, 2020, 9:02 AM), https://twitter.com/RandPaul/status/1213098238573723649 [https://perma.cc/8FXY-PK5P].Show More Could the President kill a foreign leader with no congressional authorization? Senator Rand Paul insisted that “[i]f we are to go to war [with] Iran the Constitution dictates that we declare war.”3 3.Risch Says Soleimani Was ‘Ratcheting Up’ Attacks on the U.S., PBS NewsHour (Jan. 3, 2020), https://www.pbs.org/newshour/show/risch-says-soleimani-was-ratcheting-up-attacks-on-the-u-s [https://perma.cc/XGD4-TDG3] (statement of Sen. James Risch). Although the Senator also cited the War Powers Act, the Act conveys no authority to order attacks. Id.; War Powers Resolution of 1973, Pub. L. No. 93-148, § 2, 87 Stat. 555.Show More Senator James Risch disagreed, arguing that “the president . . . has [war] powers under Article 2 of the Constitution.”4 4.Paul Kane & Mike DeBonis, Trump’s Order To Strike Iranian Commander Sparks Fresh Debate in Congress over War Powers, Wash. Post(Jan. 3, 2020), https://www.washington post.com/politics/trumps-order-to-strike-iranian-leader-sparks-fresh-debate-in-congress-over-war-powers/2020/01/03/c8921b82-2e47-11ea-9b60-817cc18cf173_story.html [https://perma.cc/7FH7-TX54].Show More He further noted that “[t]his debate [over war powers] started under George Washington.”5 5.April 2018 Airstrikes Against Syrian Chemical-Weapon Facilities, 42 Op. O.L.C. 1, 1 (May 31, 2018), https://www.justice.gov/sites/default/files/opinions/attachments/2018/05/31/2018-05-31-syrian-airstrikes_1.pdf [https://perma.cc/8S83-CJZJ].Show More
The audacious attack was hardly unprecedented. In 2018, the United States launched a missile strike against Syrian chemical weapons facilities.6 6.Michael R. Gordon, Helene Cooper & Michael D. Shear, Dozens of U.S. Missiles Hit Air Base in Syria, N.Y. Times (Apr. 6, 2017), https://www.nytimes.com/2017/04/06/world/middleeast/us-said-to-weigh-military-responses-to-syrian-chemical-attack.html [https://perma.cc/VUJ7-QTJ6].Show More And the year before, the military attacked a Syrian air base with targeted airstrikes.7 7.April 2018 Airstrikes Against Syrian Chemical-Weapon Facilities, supra note 6, at 1.Show More Again, no federal law sanctioned any of these earlier strikes. Rather, President Donald J. Trump relied upon his constitutional powers.
In the wake of the 2018 Syrian strikes, the Department of Justice’s Office of Legal Counsel (“OLC”) opined that President Trump had constitutional authority to attack other nations.8 8.Id.at 7 (quoting Presidential Authority To Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 331 (1970)).Show More The OLC stressed that “[the President] as Commander in Chief, is authorized to commit . . . hostilities, without prior congressional approval.”9 9.Id.at 3.Show More Although the OLC opinion briefly gestured towards constitutional provisions, it actually relied almost entirely on practice. The claim was that President Trump could order the strikes because his predecessors on “dozens of occasions over the course of 230 years” had done the same.10 10.The administration provided a rather brief legal justification for the Soleimani strike, arguing that under Article II, Presidents could use force to, among other things, “protect important national interests.” White House, Notice on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (2020), https://foreignaffairs.house.gov/_cache/files/4/3/4362ca46-3a7d-43e8-a3ec-be0245705722/6E1A0F30F9204E380A7AD0C84EC572EC.doc148.pdf [https://perma.cc/7CA7-NKAQ]. In a call with reporters, National Security Advisor Robert O’Brien cited both the President’s constitutional authority and the 2002 Iraqi Authorization for Use of Military Force (“AUMF”). Maggie Haberman & Catie Edmondson, White House Notifies Congress of Suleimani Strike Under War Powers Act, N.Y. Times (Jan. 4, 2020), https://www.nytimes.com/2020/01/04/us/politics/white-house-war-powers-resolution.html [https://perma.cc/HK7E-9ELW].Show More In short, longstanding practices, not specific statutory authorization, set the metes and bounds of presidential war powers.11 11.This Article uses the terms “Native American” and “Indian” interchangeably. This is to acknowledge and respect the preferences that different indigenous people have. See Samantha Vincenty, Should You Use Native American or American Indian? That Depends on Who You Ask, Oprah Mag. (Oct. 30, 2020), https://www.oprahmag.com/life/a34485478/native-american-vs-american-indian-meaning/ [https://perma.cc/7GR4-4DXU]; Native Knowledge 360°: Frequently Asked Questions, Nat’l Museum of the Am. Indian, https://americanindian.si.edu/nk360/faq/did-you-know#:~:text=In%20the%20United%20States%2C%20Native,preferred%20by%20many%20Native%20people [https://perma.cc/AU2N-SKRJ] (last visited Feb. 10, 2021).Show More
This confident claim, that Presidents have waged war on their own authority since the Constitution’s earliest days, rests on an unjustly obscure conflict: the Northwestern Confederacy War (or First War) conducted against several Native American12 12.The war goes by many names, including the “Northwest Indian War,” the “Little Turtle War,” and “President Washington’s Indian War.” In this Article, we will use either “Northwestern Confederacy War” or “First War.” We delve more deeply into the events infra Part II.Show More tribes north of the Ohio River.13 13.April 2018 Airstrikes Against Syrian Chemical-Weapon Facilities, supra note 6, at 6.Show More According to the OLC, “Presidents have exercised their authority to [wage war] without congressional authorization since the earliest days of the Republic.”14 14.Id.Show More Specifically, “President Washington [ordered] offensive operations against the Wabash Indians in 1790.”15 15.A number of scholars have helped establish the dominant view that the original Constitution left the decision to go to war to Congress, to be exercised by bicameralism and presentment. Here is a partial list: Michael D. Ramsey, The Constitution’s Text in Foreign Affairs, ch. 11 (2007); Louis Fisher, Presidential War Power 6–7 (2d ed. 2004); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3–4 (1993); Michael J. Glennon, Constitutional Diplomacy 80–84 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law 17–18 (2d ed. 1989); Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War,” 93 Cornell L. Rev. 45, 48 (2007); William Michael Treanor, Fame, the Founding, and the Power To Declare War, 82 Cornell L. Rev. 695, 699 (1997); Raoul Berger, War-Making by the President, 121 U. Pa. L. Rev. 29, 36 (1972); Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale L.J. 672, 679 (1972).Show More And because Presidents since George Washington have authorized military attacks without legislative sanction, modern Presidents likewise enjoy the power to wage war without congressional approval.
If our first President waged war without congressional authorization, that fact undermines a common constitutional assertion—that Presidents cannot take the nation to war.16 16.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring).Show More Although many modern scholars and legislators insist that Presidents cannot wage war without congressional authorization, Washington apparently committed the very act that they regard as constitutionally verboten. Further, one might suppose that what was true for Washington must be no less true for Harry Truman, Barack Obama, and Donald Trump. Hence, as a matter of constitutional law, Presidents can wage war as they please against North Korea, Libya, Syria, or, for that matter, Canada.
The OLC’s argument could be understood in two different ways. First, the OLC could be asserting that because Presidents have enjoyed the power to wage war from the Constitution’s inception, this practice sheds light on the original meaning of “executive power,” “Commander in Chief,” and “declare war.” Second, the OLC could be advancing a different claim, namely that despite the original meaning of these phrases, practice from the government’s earliest days has layered a “gloss” on them,17 17.John C. Yoo & Robert J. Delahunty, Authority for Use of Military Force To Combat Terrorist Activities Within the United States 10 n.15 (Oct. 23, 2001), https://nsarchive2.gwu.edu/torturingdemocracy/documents/20011023.pdf [https://perma.cc/4QEN-AFWP]; Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327, 333 (2000).Show More meaning that whatever the original scheme, Presidents today enjoy the power to wage war. We believe the 2018 OLC opinion makes the first sort of claim. After all, dutiful and upright Washington would never deliberately violate the Constitution. If he took the nation to war, it would seem that, notwithstanding Congress’s power to declare war, the original Constitution truly sanctioned presidential wars. And it follows that the conventional view about war powers is misguided because Washington’s war refutes it.
The OLC’s recent invocation of the Northwestern Confederacy War is not exceptional. Other OLC opinions have cited the war, although none have given it the prominence and weight that the 2018 opinion does.18 18.Abraham D. Sofaer, The Power Over War, 50 U. Miami L. Rev. 33, 38–41 (1995); John Yoo, George Washington and the Executive Power, 5 U. St. Thomas J.L. & Pub. Pol’y 1, 19–20 (2010).Show More These opinions relied upon the work of scholars, most notably Abraham Sofaer and John Yoo, who drew constitutional lessons from the war.19 19.See Yoo & Delahunty, supra note 18, at 10 n.15; Authorization for Continuing Hostilities in Kosovo,supra note 18, at 333.Show More
Because the OLC has repeatedly cited the First War to justify the executive’s unilateral use of military force abroad,20 20.Federal Legislature, Phila. Gen. Advertiser, Jan. 4, 1793, at 3 (comments of Rep. Wadsworth).Show More it is necessary to carefully assess it. There is a considerable risk that an incomplete or mistaken understanding of the war may become embedded in the historical narrative and mislead politicians and scholars. The First War may become the sturdy keystone for a view that Presidents can take the nation to war because that is what Washington supposedly did only a year after the Constitution’s inception.
The OLC’s opinions, and the underlying scholarship, while rigorous in many respects, rely on incomplete evidence and fail to properly situate the conflict in its historical context. The historical record demonstrates that Congress in fact authorized Washington to start the Northwestern Confederacy War and repeatedly approved the war’s continuation. Far from inaugurating the practice of presidential wars, the First War marked the earliest exercise of Congress’s power to “declare war.”
Consequently, Washington laid no novel gloss on the “executive power” or the “Commander in Chief” Clauses. Claims to the contrary tether the first President to a flawed and anachronistic proposition he never once entertained—that Presidents enjoy constitutional authority to start wars. As we demonstrate, George Washington in fact publicly proclaimed exactly the opposite. He forcefully insisted that Commanders in Chief could not wage war unilaterally. He endorsed this principle categorically, applying it even in the wake of declarations of war issued by other nations. On this point, his cabinet fully agreed. The claim that Presidents could lawfully take the nation to war was so outside the mainstream that neither Washington nor anyone else voiced it, even to reject it. At the time, no one read the Constitution as the executive branch (mis)reads it today. The debate we have today simply did not exist during the Washington administration because no one at the time claimed that the Constitution authorized Presidents to start wars.
Resting on the first in-depth evaluation of primary materials, this Article corrects the record and sheds new light on the original War Constitution. In our telling, America’s First War teaches a number of vital lessons. First, Congress’s power to declare war encompassed authority to sanction military expeditions, including the power to authorize offensive measures. Second, despite serving as Commander in Chief and enjoying the “executive power,” the President clearly lacked such power. Third, Congress could exercise its authority to “declare war” without using the precise phrase or a formal declaration. Fourth, via its decisions over the army’s size and the delegation of authority to summon state militias, Congress regulated the President’s conduct of the First War.
The Northwestern Confederacy War witnessed a remarkable number of “firsts.” The war marked the first exercise of Congress’s power to declare war. As one critic said, it was “the war of the legislature.”21 21.By Particular Desire, Phila. Gen. Advertiser, Jan. 7, 1792, at 2.Show More As another detractor put it, the new government found the Indians in the Northwest “in a state of disquietude” and “declare[d] war against them, as a display of power.”22 22.Prakash, supra note 16, at 96, 105.Show More The war also marked the first major interplay between the Commander in Chief and Congress, with the latter guiding the former and the former acting under the auspices of legislative decisions. The Commander in Chief was under the command of Congress.
Part I reviews existing treatments of the Northwestern Confederacy War and recounts the First War. Part II discusses the power to declare war and what the Founders said of that power prior to 1789. Part III recounts the statutes that Congress passed to authorize and support the First War. Part IV discusses what Washington and his cabinet said about presidential power to wage war without congressional authorization. Part V draws concluding lessons from America’s first war.