Crisis and Command: A History of Executive Power from George Washington to George W. Bush (14 page)

Jefferson would regret his support of executive authority as he came to oppose Washington's foreign policies toward France and Great Britain. The beginning of the French Revolution in 1789 set off wars in Europe that would last a quarter-century. Eventually, the United States became entangled and barely escaped with its independence intact. But Washington kept the United States out of the conflict, giving the nation time to develop its strength and confidence. In guiding the young republic between the Scylla and Charybdis of Britain and France, he imposed a policy of neutrality based on the constitutional understanding that he held the authority to set foreign policy, interpret and even terminate treaties, and decide the nation's international obligations. Washington paid a steep price: his policies divided his government, sparked the creation of the first political party, and turned future presidential elections into partisan affairs. Neutrality in the European wars ruined Washington's hopes for a government ruled by consensus and left him disgusted with politics.

After the beheading of King Louis XVI, France declared war on Great Britain and Holland on February 1, 1793.
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Edmund Genet, the new regime's ambassador to the United States, arrived two months later. News of war threw the American government into a quandary over the 1778 treaties with France, which had been crucial to the success of the Revolution. Article 11 of the Treaty of Alliance called on the United States to guarantee French possessions in the Americas, which implied that the United States might have to defend France's West Indies colony (today's Haiti).
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Article 17 of the companion commercial treaty gave French warships and privateers the right to bring captured enemy ships as prizes into American ports.
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Article 22 prohibited the United States from allowing France's enemies to equip or launch privateers or sell prizes in American ports.

Genet attempted to rouse the American people against Britain. Demanding that the United States honor the treaties, he authorized American ships to raid British shipping. The cabinet split over a response. Jefferson deeply hated Great Britain, admired the French Revolution, and suspected Hamilton of duplicating the British political system. For his part, Hamilton loathed the French Revolution, and his financial system depended on good relations with Britain. Upon learning of the French declaration of war, Hamilton, "with characteristic boldness," immediately urged Washington to suspend or terminate the treaties.
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The young Treasury Secretary simply could not help meddling in the affairs of others, especially those of the Secretary of State. Hamilton believed that Britain's control of the seas and its trading system made good relations with London paramount. While a change in government did not automatically void treaties with another state, he argued that the uncertain status of the French government and the dangerous wartime situation allowed suspension of the treaties.
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While Jefferson agreed that military participation in the European war was out of the question, he believed the United States was obliged to fulfill the treaties. (Under the Articles of Confederation, he had served as minister to France.)

On April 18, Washington sent a list of 13 questions to Hamilton, Jefferson, Knox, and Randolph and ordered a cabinet meeting for the next day -- establishing a regular mechanism of presidential decision-making.
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Almost all of Washington's questions involved the interpretation of the 1778 treaties. Question four, for example, asked: "Are the United States obliged by good faith to consider the Treaties heretofore made with France as applying to the present situation of the parties?" Washington ordered them to give an opinion on whether Article 11 applied to an offensive war launched by France, whether the United States could both observe the treaties and remain neutral, and under what conditions the United States could suspend or terminate the treaties.

Washington's questions produced a deceptive unanimity in the cabinet. Everyone agreed that a proclamation of neutrality should be issued, but in order to assuage Jefferson's concerns, the word "neutrality" was not used. Indeed, given the distance of the United States, its military weakness, and its strategic irrelevance to the European theatre, neutrality was the only realistic option. Two other questions received the same unanimity. The cabinet agreed that the President should receive Genet as France's ambassador, making the United States the first nation to recognize the government of revolutionary France. The members further agreed that consulting Congress was unnecessary. The executive branch would decide the nation's position on the European wars. Adjourning the meeting without reaching the other questions, Washington asked his advisers to submit written responses on whether to suspend or terminate the 1778 treaties.

No one in the cabinet disputed that the President held this power under the Constitution. On April 28, Jefferson, later joined by Randolph, argued that international law did not permit the suspension or annulling of a treaty because of a change in government.
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Because he believed that France was unlikely to ask the United States to defend the West Indies, Jefferson recommended that the administration do nothing. On May 2, Hamilton and Knox argued that the civil war in France allowed the United States to suspend the treaty, or even terminate it because of the new circumstances threatening American national security.
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They read the treaty to apply only to defensive wars, not to one in which France had attacked first. Telling Jefferson that he "never had a doubt about the validity of the treaty," Washington decided against suspension the next day.
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On the question of the West Indies, Washington decided to remain silent, a wise choice, as Jefferson's prediction proved correct and France did not seek American aid.

Washington issued his decision in a proclamation drafted by Randolph.
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Recognizing a state of war between France and the other European powers, he announced that the United States "should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerant [sic] Powers." Washington further saw fit to "declare the disposition of the United States to observe the conduct aforesaid towards those Powers respectfully" and "to exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition." The proclamation also stated that the federal government would prosecute those who "violate the law of nations, with respect to the Powers at war." His proclamation was a determination that American obligations did not require entry into the war on the side of the French. After a year, Congress implemented his interpretation into domestic law by making it a crime for a citizen to violate American neutrality.
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Although the Continental Congress had negotiated and ratified the 1778 treaties, Washington never asked about its intentions.
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None of his cabinet members wanted to interpret the treaties in the light most favorable to France. Both Hamilton and Jefferson grounded their appeals in the national interest, international law, and common sense. Neither expressed a belief that consultation with Congress or the Senate was necessary or advisable. Washington and his cabinet proceeded on the assumption that it was the province of the executive branch to interpret treaties, and so set foreign policy, on behalf of the United States. They even believed that the President had the authority to terminate the 1778 treaties. Hamilton argued that the President could terminate if necessary, but recommended only suspension. Fighting a rearguard action, Jefferson did not raise a constitutional objection. Even though Hamilton convinced Washington to declare neutrality, it is doubtful that Jefferson could have produced any other outcome -- the United States simply was not going to enter the war on France's side, at least not for another two decades.
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The proclamation provoked one of the great constitutional debates in American history. In a series of newspaper articles that summer, Hamilton adopted the pseudonym of "Pacificus" to defend the President's constitutional authority.
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Hamilton began with the position that foreign policy was executive by its very nature. Congress was not the "organ of intercourse" with foreign nations, while the judiciary could only "decide litigations in particular cases." Declaring neutrality, therefore, must "of necessity belong to the Executive." It drew from the executive's authority as "the
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of intercourse between the Nation and foreign Nations," as "interpreter of the National Treaties in those cases in which the Judiciary is not competent," and as enforcer of the law, "of which treaties form a part." Hamilton argued that treaties, as well as the rules of international law, were part of the laws to be carried out by the executive, and "[h]e who is to execute the laws must first judge for himself of their meaning." Last, but not least, Hamilton believed the executive could declare neutrality because of its "Power which is charged with the command and application of the Public Force."

Basing his claims on the constitutional text, Hamilton argued that the President's authority derived from Article II, Section 2's grant of the executive power. The Constitution already made the President Commander-in-Chief, maker of treaties with the advice and consent of the Senate, receiver of ambassadors, and executor of the laws. But "it would not consist with rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant contained in the general clause." Article II's enumeration of powers "ought...to be considered as intended...to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power...." For Hamilton, the Senate's role in making treaties was only a narrow exception from the general grant of executive power to the President and "ought to be construed strictly." When the Constitution sought to transfer traditionally executive powers away from the President, it did so specifically, as with the power to declare war. "The general doctrine then of our constitution is, that the Executive Power of the Nation is vested in the President," Hamilton concluded, "subject only to the exceptions and qualifications which are expressed in that instrument."

Madison, however, expressed surprise and concern over the President's Proclamation of Neutrality. In a letter to Jefferson, Madison claimed Hamilton had talked Washington into an "assumption of prerogatives not clearly found in the Constitution and having the appearance of being copied from a Monarchical model."
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His immediate criticism was that the proclamation intruded on Congress's power to declare war. Jefferson explained that although he had agreed in the cabinet that the President could declare neutrality without consulting Congress, that he nonetheless held constitutional concerns. When Hamilton's Pacificus essays -- defending the President's power to declare neutrality -- appeared in the press, Jefferson begged Madison: "For God's sake, my dear Sir, take up your pen, select the most striking heresies and cut him to pieces in the face of the public."
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Under the pseudonym "Helvidius," Madison took issue with every point of Hamilton's constitutional arguments.
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He dismissed Locke and Montesquieu's classification of foreign affairs as executive in nature because they were "evidently warped by a regard to the particular government of England." Making treaties and declaring war were legislative powers because they had the force of law; therefore, the President could not exercise them. "The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws," Madison wrote. "All his acts therefore, properly executive, must presuppose the existence of the laws to be executed." The Constitution vested the power to declare war in Congress and gave the Senate an equal share in the treaty power, confirming that they set private rules of conduct made the law of the land by the Supremacy Clause. To allow the President a share of the legislative power "is an absurdity -- in practice a tyranny."
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Madison's deeper argument was that placing the power to start and wage war in the same hands risked tyranny. "Those who are to conduct a war cannot in the nature of things be proper or safe judges whether a war ought to be commenced, continued, or concluded.
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Why? Because, according to Madison, "war is in fact the true nurse of executive aggrandizement."
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In war, "physical force is to be created," "the public treasures are to be unlocked," "the honors and emoluments of office are to be multiplied," and "laurels are to be gathered," and all are to be placed at the disposal of the executive. It is an "axiom," therefore, that "the executive is the department of power most distinguished by its propensity to war." Pacificus's broad reading of the vesting of the executive power in the President, Madison retorted, was nothing less than an effort to smuggle the British Crown into the Constitution.

History has looked more favorably on Hamilton's arguments than Madison's. Helvidius claimed rather unpersuasively that foreign affairs were legislative in nature or shared between the branches, and he never directly addressed Hamilton's argument about Article II's vesting of the executive power in the President.
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It was difficult for Madison to deny that Article II granted the President some unenumerated powers, in light of his arguments during the removal debate. Madison ultimately rested on the narrower point that the President could not interpret treaties in a manner that prevented Congress from exercising its own plenary constitutional power to declare war.
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The proclamation, however, did not prevent Congress from declaring war, if it wished. Washington's actions only had the effect of preserving the status quo.