Many people believe presidents have a great deal of authority to make unilateral decisions about war without the approval of Congress. To support this conclusion, they often point to actions taken by early presidents such as John Adams. But this narrative doesn’t stand up to the facts. Not even close.
During America’s Quasi-War with France, Adams asked Congress for permission to take offensive military actions on multiple occasions, and in order to stay within the bounds of the Constitution’s war powers, he closely followed the limitations and boundaries that Congress set.
ESCALATION
When France and England went to war after the French Revolution, the U.S. declared its neutrality. However, there were growing tensions between the U.S. and France.
In 1793, Congress suspended the repayment of French loans made during the American Revolution. U.S. officials argued that the debt was owed to the French crown, not the new Republican government installed during the French Revolution.
Relations with France became more strained with the enactment of the 1794 Jay Treaty between the United States and England. The treaty resolved several post-Revolution conflicts between the two nations and established a trade agreement.
The French viewed the treaty as an alliance between Britain and the U.S. They also argued that it violated the Franco-American Treaty of 1778. This was the treaty that formalized France’s financial and military support for the American colonies during the Revolution. It effectively created a defensive alliance against Great Britain
In retaliation, French privateers began seizing U.S. vessels trading with Britain in the Caribbean and along the U.S. eastern seaboard. By the summer of 1797, the French had seized over 300 American vessels.
REQUESTING AUTHORIZATION
In the spring of 1797, President Adams called for a special session of Congress to discuss the mounting tensions with France. In his address to Congress, Adams said the purpose of the session was to give “Congress information of the state of the Union and recommending to their consideration such measures as appear to me to be neccesary or expedient, according to my constitutional duty.”
Adams said the U.S. urgently needed “the establishment of a permanent system of naval defense,” but conceded “it can not be formed so speedily and extensively as the present crisis demands.”
Significantly, Adams deferred to Congress to determine the path forward, saying “It remains for Congress to prescribe such regulations as will enable our seafaring citizens to defend themselves against violations of the law of nations, and at the same time restrain them from committing acts of hostility against the powers at war.” [Emphasis added]
In response, Congress authorized Adams “to require of the executives of the several states…to organize, arm and equip, according to law” 80,000 effective militia “to march at a moment’s warning.”
In his First annual address to Congress in November of 1797, Adams reported on France’s refusal to negotiate and continued to urge Congress “to place our country in a suitable posture of defense.”
In March 1798, Adams sent a special message to Congress, informing members of the efforts of the “envoys extraordinary of the United States to the French Republic.” He wrote, “I perceive no ground of expectation that the objects of their mission can be accomplished on terms compatible with the safety, the honor, or the essential interests of the nation.”
He also again asked permission from Congress to allow more aggressive actions against the French, writing, “Under these circumstances I can not forbear to reiterate the recommendation which have been formerly made,” and he explicitly asked Congress to “enact such measures as the ample resources of the country afford for the protection of our seafaring and commercial citizens, for the defense of any exposed portions of our territory, for replenishing our arsenals, establishing foundries and military manufactures.”
In April 1798, Congress agreed and authorized the purchase of ships to defend American shipping from French predations. The act gave the Secretary of the Navy the responsibility for “construction, armament, equipment and employment of vessels of war, as well as all other matters connected with the naval establishment of the United States,” subject to the president’s discretion.
THE CONSTITUTIONAL LINE
The arming of ships left open the question as to what actions the captains of these armed vessels could take. Secretary of War James McHenry asked Alexander Hamilton for advice. Hamilton insisted Admas was “left on the foot of the Constitution.”
That being the case, Hamilton said he “was not ready to say that he has any other power than merely to employ the ships as convoys with authority to repel force with force (not to capture), and to repress hostilities within our waters including a marine league from our coasts.”
“Anything beyond this must fall under the idea of reprisals & requires the sanction of that Department which is to declare or make war.” [Emphasis added]
In other words, Hamilton asserted that Adams was limited to ordering defensive measures only until Congress authorized further action.
This was consistent with the advice Henry Knox had ascribed to Hamilton and Thomas Jefferson when asked about Cherokee declarations of war during the Washington administration.
Adams apparently closely followed this advice according to historian Abraham Sofaer in his book “War, Foreign Affairs and Constitution Powers.” He issued narrow instructions to a Navy captain, saying operations must be “partial and limited”.
As Saikrishna Prakash summed it up in his Virginia Law Review paper Unleashing the Dogs of War: What the Constitution Means by ‘Declare War.’ “Adams authorized defensive measures and did not permit the general capture of French ships or other offensive operations.”
WAR
Relations between the U.S. and France continued to deteriorate. In July 1798, Adams signed a congressional act abrogating treaties with France. The act specifically accused France of “repeatedly” violating treaties with the United States and asserted that “just claims for reparation of the injuries so committed have been refused.”
Two days later, Congress passed an act empowering Adams to go beyond purely defensive measures, authorizing U.S. vessels “to subdue, seize and take any armed French vessel, which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas.”
Only after this did Adams authorize U.S. ships to engage French privateers with offensive measures.
In February 1799, Congress expanded Adams’ authority, allowing U.S. ships to seize any ship – rather than just an “armed French vessel” – engaging in commerce between the U.S. and France and its West Indies colonies, regardless of the owner’s registry.
American ships seized more than 80 French vessels before hostilities ended with the Convention of 1800, also known as the Treaty of Mortefontaine in December of that year.
Some supporters of unilateral presidential war powers today will take the position that the Quasi-War with the French didn’t qualify as a “war,” so while Adams did defer to Congress and closely followed its directives, he didn’t actually need to get permission from Congress for the actions he took.
That leaves the essential question unanswered. Are they right? Or was this war as defined under the Constitution?
President Adams certainly thought it was.
In a letter to John Marshall in early 1800, he wrote, “Congress has already in my judgment, as well as in the opinion of the judges at Philadelphia, declared war within the meaning of the constitution against [France], under certain restrictions & limitations.” [Emphasis added]
Adams made it clear that the scope of the war was limited by the actions of Congress, telling Marshall, “If war in any degree is to be continued, it is a serious question, whether it will not be better to take off all the restrictions & limitations.”
In an 1813 letter to Tomas Jefferson defending the Alien and Sedition Acts, Adams also emphatically called the hostilities with France a “war.”
“We were then at War with France: French Spies then swarmed in our Cities and in the Country. Some of them were, intollerably, turbulent, impudent and Seditious. To check these was the design of this law.”
In a Supreme Court case stemming from the war, Justice Samuel Chase affirmed that Congress could declare a limited war – and it did not require a formal statement or declaration. In effect, he argued that the Quasi-War was a war.
“Congress is empowered to declare a general war, or Congress may wage a limited war; limited in place, in objects, and in time…. congress has authorized hostilities on the high seas by certain persons in certain cases. There is no authority given to commit hostilities on land.”
CONCLUSION
Adams consistently deferred to Congress and resisted taking offensive actions against the French during the Quasi-War until he obtained specific Congressional authorization. And once Congress acted, he kept his actions within the parameters it established. This undercuts the arguments of those who assert the president has wide latitude in decision-making when it comes to war and peace.
The Quasi-War also shows that a “declaration” of war doesn’t require any specific words calling it such. It is, as Thomas Jefferson put it, any action that changes the state of things from peace to war. Congress’s limited authorization to use offensive force against France constituted a declaration of war under the Constitution, limited though it was.
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