Supporters of unilateral executive war power want you to believe presidents can make all kinds of decisions about war and peace because, as they tell the story, George Washington engaged in military conflicts with Native Americans without getting authorization from Congress.
They’re either ignorant or lying – or both.
The Constitution delegates the power to “declare war” to Congress. Many people think this power is limited to issuing some kind of proclamation or document, but declaring war is a much broader concept. During the founding era, it was understood as the power to change the condition of things from peace to war.
The Constitution delegated this power to Congress because the founding generation didn’t want a single individual making such a significant decision. James Madison explained it this way:
“The separation of the power of declaring war, from that of conducting it, is wisely contrived, to exclude the danger of its being declared for the sake of its being conducted.”
But according to most people on both the left and the right today, the Constitution leaves all kinds of wiggle room for the president to take military action on his own authority. To support this narrative, they claim George Washington unilaterally engaged in military action against American Indian tribes without any congressional authorization.
This narrative doesn’t stand up to the facts. Not even close.
BACKGROUND
When the Confederation Congress passed the Peace Establishment in 1784 at the conclusion of the American Revolution, it provided “a body of troops, to consist of seven hundred non-commissioned officers and privates, properly officered” to guard the western posts along the northwestern American frontier.
In 1786, Congress expanded the authorized number of troops to as many as 2,040 due to heightened tensions between several Indian tribes and American settlers.
On July 21, 1787, Congress followed up with a resolution acknowledging that the Army and militia may need to take offensive measures, referred to as “expeditions,” but Congress retained ultimate authority to “order and direct” when and where such operations would take place. Congress suggested that its decision would turn on whether the tribes “continue[d to be] hostile.”
When George Washington became president under the Constitution in 1789, he took the position that these previous acts of the Confederation Congress no longer held any legal force, so he considered a similar authorization from the new Congress to be a top priority.
In a special message to the Senate on Aug. 7, 1789, Pres. Washington began pushing Congress to act.
“The disputes which exist between some of the United States and several powerful tribes of Indians within the limits of the Union, and the hostilities which have in several instances been committed on the frontiers, seem to require the immediate interposition of the General Government.”
Washington recommended a peace treaty commission and re-establishing the deployment of troops on the frontier. When the Senate failed to respond, Washington sent a second message just three days later.
A month later, the governor of the Northwest Territory, Major General Arthur St. Clair, sent a letter to Washington highlighting the problems in the territory and urging the revival of the resolutions passed by the Confederation Congress. He said it would show the “Western people” that “they were not unattended to.”
St. Clair emphasized that while the handful of troops “scattered in the country” could provide some protection for settlements, they could not possibly “act offensively” without approval from Congress
Washington didn’t give St. Clair authorization to do anything. Instead, he sent a letter to the House and Senate on Sep. 16, 1789 – asking for permission:
“I think proper to suggest to your consideration the expediency of making some temporary provision for calling forth the Militia of the United States for the purposes stated in the Constitution, which would embrace the cases apprehended by the Governor of the Western Territory.”
After nearly two months of pressure from the administration Congress finally acted on Sept 29, 1789, passing “An Act to recognize and adapt to the constitution of the United States, the establishment of the troops raised under the resolves of the United States in Congress assembled and for other purposes.”
This act officially established the Army under the Constitution, and “for the purpose of protecting the inhabitants of the frontiers of the United States from hostile inclusions of the Indians,” and it further authorized the President to “call into service, from time to time, such part of the militia of the states, respectively, as he may judge necessary for the purpose aforesaid.”
After receiving this authorization from Congress, Washington sent a letter to St. Clair, instructing him to inform the Indians of the U.S. government’s “reasonable desire that there should be a cessation of hostilities as a prelude to a treaty.” But Washington also authorized St. Clair to mobilize up to 1,000 militia members from Virginia and 500 from Pennsylvania if “they should continue their hostilities.”
He wrote:
“Congress having by their Act of the 29th of September last empowered me to call forth the Militia of the States respectively, for the protection of the frontiers from the incursions of the hostile Indians, I have thought proper to make this communication to you, together with the instructions herein contained.”
It’s important to note that even at this early stage, despite ongoing hostilities, Washington deferred to Congress before authorizing any military operations at all.
Because of the urgency of the situation, the September 1789 act was a stopgap measure with a sunset date. On April 30, 1790, Congress passed another act giving Washington a similar 3-year authorization.
“That for the purpose of aiding the troops now in service, or to be raised by this act, in protecting the inhabitants of the frontiers of the United States, the President is hereby authorized to call into service, from time to time, such part of the militia of the states, respectively, as he may judge necessary for the purpose aforesaid”
Washington took no action against the Indian tribes until he had this explicit authorization to do so.
CONFLICT INTENSIFIES
On Sept. 26, 1792, Tennessee Gov. William Blount sent a letter to Washington’s Secretary of War Henry Knox informing him that “5 lower towns of the Cherokees have declared war against the U. States.”
In another letter to Knox, he wrote “This declaration of War was very unexpected, and has given great alarm to the Frontiers. Indeed I do not find that any thing of the kind has ever before been done by Indians in so formal a manner.“
Knox promptly convened a meeting with two important cabinet members to discuss the matter. Documents show that it was the “unanimous opinion” of Henry Knox, along with Secretary of the Treasury Alexander Hamilton, and Secretary of State Thomas Jefferson that despite ongoing attacks and a formal declaration of war, “all measures of an offensive nature be restrained until the meeting of Congress, to whom belong the powers of war.“
Knox then informed Gov. Blount that he could deal with incursions into his territory, but could only take defensive measures. Further action could only be taken under the authorization of Congress.
“As you have ample powers to call forth such portions of the Militia of your Government for its defensive protection as you shall judge occasions to require no further steps can be taken at this moment.” [emphasis added]
Knox continued, noting that it was the Washington administration’s position that anything beyond the line of defense, i.e. any “expedition,” had to get approval from the branch of government which holds the power of declaring war:
“The Congress which possess the powers of declaring War will assemble on the 5th of next Month—Until their judgments shall be made known it seems essential to confine all your operations to defensive measures—This is ?intended? to restrain any expedition against the Indian Towns—but all incursive parties against your frontiers are to be punished with the greatest severity.”
PERMISSION DENIED
On Dec. 7, 1792, Washington sent a message to Congress asking for permission to take offensive measures as requested by Gov. Blount.
“These and a letter of the 9th of October last, which has been already communicated to you, from the same Department to the governor, will shew in what manner the first section of the act of the last session which provides for calling out the militia for the repelling of Indian invasions has been executed. It remains to be considered by Congress whether in the present situation of the United States it be advisable or not to pursue any further or other measures than those which have been already adopted. The nature of the subject does of itself call for your immediate attention to it, and I must add that upon the result of your deliberations the future conduct of the Executive will on this occasion materially depend.”
In response, Congress did not give Washington the authorization he sought.
And because of that, Pres. Washington did not authorize or direct any such action.
Instead, wrote to Gov. Henry Lee in Virginia to let him know that he could not take any offensive actions – even when under attack.
“It gives me inexpressible pain to receive such frequent, and distressing accounts from the Western frontiers of this Union (occasioned by Indian hostilities)—more especially as our hands are tied to defensive measures.”
In May 1793, Knox expressed a similar view in a letter to Blount.
“If depredations are repeated and continued upon the frontier inhabitants, the measure of protection is indispensible, but that protection can only be of the defensive sort. If other, or more extensive measures shall be necessary, they must probably result from the authority expressly given for that purpose.”
Despite the rebuff, Blount kept pushing for authorization to take further actions and go on the offensive. Nevertheless, Congress took no action on the matter. While everybody acknowledged the seriousness of the situation on the southern frontier, there was fear that more aggressive actions against the tribes could pull other European powers into the war on the side of the Indian tribes. Knox responded to Blount again on July 26, 1794.
“I am instructed especially by the President to say, that he does not consider himself authorized to direct any such measure, more especially as the whole subject was laid before Congress in the last session, who did not think it proper to authorize or direct offensive operations.”
Stop and consider Washington’s restraint and compare it to the actions of any modern president. In response to attacks by another nation and a formal declaration of war on the U.S., the president repeatedly held the line, insisting he was unable to authorize anything beyond repelling an attack – a direct incursion.
Any “offensive measures,” including attacking anything in enemy territory, were completely off-limits without authorization from Congress.
THE CREEK NATION
Washington took the same kind of approach against the Creek nation, which had been attacking since at least April 1793
In a letter to South Carolina Governor William Moultrie on Aug. 28, 1793, Washington said he hoped to launch an offensive operation against the Creeks, “whenever Congress should decide that measure to be proper and necessary.”
“The Constitution vests the power of declaring War with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.”
In his Fifth Annual Message to Congress on Dec. 3, 1793, Washington addressed the ongoing conflicts with the Creek and Cherokee tribes, noting offensive actions against them were “prohibited” during the recess of Congress.
“But the papers which will be delivered to you disclose the critical footing on which we stand in regard to both those tribes, and it is with Congress to pronounce what shall be done.”
Washington again demonstrated Constitutional fidelity and consistently deferred to Congress as he navigated hostilities with tribes in the South. He never took unilateral action. He maintained a consistent policy of holding the line of defense but never crossing over into offensive action until authorized, even in the face of what he described as a “predatory war between southern Indians and the southern & southwestern frontiers of these United States,” in a letter to Timothy Pickering two years later.
WASHINGTON’S VIEW
Some will argue that none of this was relevant because it wasn’t really a war, but it’s clear from the statements by Washington and many others that they considered it a war. In fact, in 1794, the U.S. signed a treaty with both the Cherokee and the Creeks that made it clear they were previously at war and were “reestablishing peace.”
Washington’s limited view of his own war powers becomes clear in light of the actions he took – and more importantly, didn’t take – during wars with the Indian tribes.
Washington and his entire cabinet operated under the understanding that Congress must decide to take the nation to war even if another nation had declared war. Repulsing an attack did not implicate this congressional authority, thus Washington’s repeated instructions to take defensive measures only. This is why he repeatedly went to Congress seeking approval for offensive action and didn’t authorize any when Congress failed, or chose not to act.
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