Crisis and Command: A History of Executive Power from George Washington to George W. Bush (12 page)

As with Shays' Rebellion, Americans' suspicion of taxes put the young government to the test. One of the subroutines of Hamilton's financial program imposed an excise tax on the manufacture of liquor. Whiskey was an important article of commerce, going beyond the impressive drinking ability of Founding-era Americans. Distilling allowed Western farmers to transform their crops into a more transportable form, to the point where whiskey even served as a form of frontier currency. After Congress adopted the tax in 1791, protests occurred in the western parts of Pennsylvania (one of the leaders was Albert Gallatin, who would become Jefferson's Treasury Secretary), Virginia, Kentucky, and the Carolinas. Armed resistance broke out three years later, the first significant internal challenge to the new federal government. It would not be the last time that Americans would break the law to defend their beverage of choice.
40

Washington employed a strategy of political patience backed up by the threat of force. When trouble first arose, he issued a proclamation declaring that resistance to the tax was "subversive of good order, contrary to the duty that every citizen owes to his country, and to the laws, and of a nature dangerous to the very being of a government."
41
Citing his authority under the Take Care Clause, Washington ordered all courts and officials to enforce the tax and to punish lawbreakers. He sent a note to state governors expressing his "entire confidence" that they would "cheerfully" promote "a due obedience to the Constitutional Laws of the Union." Governors were not even officers of the federal government, but Washington believed that he could command them to enforce the law.

Washington then adopted a wait-and-see attitude. Congress amended the law to moderate, but not eliminate, tax enforcement, and Hamilton experimented with measures to encourage compliance. Armed resistance still broke out in the summer of 1794, when tax officers began to issue arrest warrants in western Pennsylvania, with trials to be held across the state in distant Philadelphia. About 500 militiamen skirmished with a dozen regular soldiers and burned the home of the federal tax inspector on July 16. On August 1, about 7,000 armed men marched on Pittsburgh; federal officials fled to escape tarring and feathering.

Washington believed he had a personal responsibility to enforce the law. Hamilton, Knox, and Attorney General William Bradford recommended calling out the state militias under federal control, while Randolph, then Secretary of State, urged reconciliation through a federal commission. Washington took both courses. The Constitution gives Congress the authority to provide for the calling of the militia to "execute the Laws of the Union, suppress Insurrections and repel Invasions." Under the 1792 Militia Act, the President can call out the militia once a federal judge finds that forces too powerful for the courts are blocking enforcement of the law.

The administration provided the facts of the rebellion to Justice James Wilson, who made the required findings. On August 7, Washington issued a proclamation that the western Pennsylvania area was in a state of insurrection, ordered the rebels to return to their homes, and declared his intention to call out the militia. He ordered 12,500 troops from Maryland, New Jersey, and Virginia, in addition to Pennsylvania. Washington also sent commissioners to offer amnesty to any who would swear an oath to obey the laws. His strategy was remarkably successful: a large majority took the oath, while an army of nearly 13,000 (the popular call for troops met with more volunteers than asked) rode through the area in September. They found only 20 rebels, the rest having scattered.

Washington had moved swiftly, issuing his proclamation and calling out the militia only six days after the attacks on federal officials began. He had not waited for federal judges to trigger the Militia Act, but instead went directly to Justice Wilson for a finding of insurrection. He had not consulted Congress, but instead limited discussion of the options to his cabinet, from whom he ordered opinions, and to the state governors, who had to supply the troops. His relationship with the governors is particularly instructive. Under the Articles of Confederation, the governors and legislatures of the states routinely ignored requests for legislation or supplies made by the Continental Congress. Washington turned this unhealthy relationship upside down. When Pennsylvania's governor claimed that a resort to force was unjustified, Washington responded that the nation's response would not depend on the state's views, and ordered him to supply militia to serve under federal command. Washington believed that when state governors enforced federal law, they were subordinate to him, even if he could not remove them.

Washington led the army
personally
. He rode at the head of the troops, followed by Hamilton and the governor of Pennsylvania, in a show of the new government's strength. Washington's actions were remarkably popular, far more than anyone in his cabinet anticipated, and he followed them with a message to Congress that described the resistance as an insurrection, treason, and a challenge to federal authority.
42
Congress so approved of Washington's careful use of his powers that it permanently reenacted the Militia Act in 1795 and removed the 1792 Act's requirement that the President seek judicial approval before calling out the militia -- all that was required now was a presidential proclamation.
43

A less dramatic, but equally revealing, episode in the aftermath of the Whiskey Rebellion further illustrates Washington's control of all aspects of federal law enforcement. Defending the modern independent counsel law, today's critics of executive power argue that prosecution does not fall within presidential control. They have pointed to the fact that in 1789, Congress created no Justice Department -- the Attorney General was the sole officer whose job was to advise the President and to represent the United States before the Supreme Court. In the first Judiciary Act, Congress placed the appointment of federal district attorneys in the courts and did not make them explicitly responsible to the Attorney General or the President. Washington did not believe this made federal prosecutors independent. After the Whiskey Rebellion, he ordered Pennsylvania's federal prosecutor to drop the cases against two rebels, and after his Neutrality Proclamation (to be discussed shortly), Washington directed U.S. attorneys to collect information and prosecute violators.
44
This is not to say that Washington exercised the type of centralized control over prosecution that Presidents do today. Given the distances of communication and travel, local federal officials enjoyed a broad discretion that their modern counterparts can only dream of.
45
Still, Washington believed he could issue direct orders to anyone who carried out federal law, and none of those on the receiving end appears to have disagreed.

The handling of the Whiskey Rebellion rebels set another important law enforcement precedent that counterbalanced the legislature's plenary control over domestic legislation. Just as the President can direct the prosecution of cases to the letter of the law, he can also moderate the law's harshness. Washington's decision to drop the two Whiskey Rebellion cases made clear that he possessed the discretion to choose which cases to prosecute and which to let go. The executive branch would not seek to punish every infraction of federal law. Prosecutorial decisions would be based on a host of considerations, such as the resources available, deterrent effect, retribution, and the seriousness of harm. Under President Jefferson, these considerations would include disagreements with Congress over the policies and constitutionality of the criminal law. A President could refuse to prosecute offenders of a law that he believed violated the right to freedom of speech or religion, even if Congress disagreed.

Washington's offer of amnesty also revealed an important presidential power -- to stay a mechanical application of the law to yield more important national benefits. The Constitution's grant of the pardon power could have been read to allow the President only to release individuals already convicted of a crime, though the historical evidence suggests that the Framers believed it would be used to offer rewards to criminal conspirators who cooperated with the government.
46
Washington used the pardon power for a broader purpose, that of restoring order and allowing the government to show magnanimity. Nothing in the Constitution explicitly thrust these goals on Washington, but as Chief Executive he took the establishment of a strong government and the protection of the national interest to be his unique responsibilities. It is a sign of how strongly Washington shaped the office that even today we automatically assume that Presidents enforce the laws guided by their own understanding of the public good.

PROTECTING THE NATION: FOREIGN AFFAIRS AND THE WARS OF EUROPE

PRESIDENTS OWE THEIR privileged position in foreign affairs not to politics alone, but to the Constitution and to our first President. Washington established from the beginning that the executive branch would assume the leading role in developing and carrying out foreign policy. He did not go unchallenged. In defending Washington's foreign policy initiatives, Hamilton first publicly argued that the President is vested with all of the government's executive power, except that specifically transferred to another branch by the Constitution. Presidents ever since have taken the initiative in foreign affairs by relying on their constitutional powers.

The Constitution's text does not explicitly grant much to the President beyond the undefined executive power, the Commander-in-Chief role, and the right to receive ambassadors. He must share the treaty and appointment powers with the Senate, while Congress receives the powers to declare war and issues letters of marque and reprisal (government permission to privateers to conduct hostilities against an enemy), to raise and fund the military, and to regulate foreign commerce, among other powers. There have been periods where early Presidents deferred to Congress's foreign policy leadership, though with poor results -- witness President Adams and the 1798 Quasi War with France or President Madison and the War of 1812. Indeed, the conventional wisdom among many legal scholars is that the Constitution gives Congress control over foreign affairs, and that Presidents have inappropriately seized power over war and peace.
47
As a practical matter, however, the President today can launch the nation into war without explicit congressional consent, enter or end international agreements, interpret international rules on behalf of the United States, and control diplomatic relations with other nations. These decisions, from President Truman's decision to wage the Korean War to Jimmy Carter's termination of the mutual defense treaty with Taiwan, have sparked political controversy and claims of presidential overreaching. It might not have been Washington's original intention to develop the executive so completely, because he devoted much of his first term to establishing the national government, appointing its officers, and fixing the nation's finances. When he turned to foreign affairs in the early months of his Presidency, he seemed to think that the Senate would perform the role of an advisory council on diplomatic matters. In contrast to his approach to appointments, where he considered the Senate's role to be limited to review of his nominations, Washington apparently believed that the Constitution required him to consult with the Senate before sending ambassadors to negotiate. As we will see, however, our first President quickly came to the conclusion that the executive would have to play the primary role in determining the nation's foreign policy.

WAR POWERS

WAR REMAINS ONE of the most hotly disputed questions in constitutional law today. Some claim that the original understanding of the Constitution requires Congress to authorize all wars because of its power to declare war. Defenders of the executive branch rely on the modern practice of Presidents launching significant wars without congressional authorization. Opponents of this view have relied on a 1793 statement by George Washington rejecting a plea that the United States attack the Creek Indians. "The Constitution vests the power of declaring war with Congress," Washington wrote to Governor William Moultrie of South Carolina, "therefore no offensive expedition of importance can be undertaken until after they shall have deliberated on the subject, and authorized such a measure."
48
Some scholars claim this shows Washington's agreement that Congress must enact legislation authorizing all military hostilities abroad. David Currie, for example, concludes that the "first three presidents," Washington included, "took an appropriately narrow view of their authority as Commander in Chief," a view he believes was faithful to the decisions of the Constitutional Convention.
49

War in the early years of the Republic was not so simple. The administration sought Congress's cooperation when it needed increases in the size of the army, military spending, or the approval of agreements -- in other words, those areas where the Constitution specifically provided for a legislative role. When it came to political and military strategy, however, Washington and his advisors mostly acted alone. Under our first President, the United States waged war against only one enemy, the Indian tribes located in the neighborhood of present-day Ohio. By the time of the ratification, friction between Indians and American settlers in the West had grown, and some tribes had refused to respect the terms of the peace with Great Britain.
50
British leaders, for their part, hoped that the Indians would create a buffer state that would limit American expansion in the Northwest. Washington and Knox pursued a peaceful settlement with the tribes, but they prepared for war.

In 1789, it would have been impossible for Washington to conduct military operations without Congress's active cooperation. This was not because of the power to declare war; there simply were no troops for the President to command. After assuming office, Washington reported to Congress that the existing army numbered only 672 officers and soldiers, scattered across the frontier. By comparison, Indian tribes menacing Georgia could field 5,000 warriors for battle.
51
Under the Articles of Confederation, Congress had established a force to protect the frontiers "from the depredations of the hostile Indians" and police the public lands.
52
In order to wage any kind of campaign, Washington would have to convince Congress to create a standing army. Living in a world with a large peacetime army and navy, we easily forget that chief executives of the eighteenth and nineteenth centuries had to seek ad hoc creation of a military force to fight any significant conflict. Congress's power of the purse and its authority to establish the military gave it a functional veto over any war, and the ability to limit the nature of a conflict through the structure of the armed forces.