Oh, by the way, Congress, we're at war.

George Washington Asked Congress to 'Buy In,' Too

Stephen Mihm, an associate professor of history at the University of Georgia, is a contributor to the Bloomberg View. Follow him on Twitter at @smihm.
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President Barack Obama is asking Congress for its “buy in” for military operations to combat the Islamic State, which has captured large swaths of territory in Iraq and Syria.

This approach, which puts Congress in the role of merely acceding to the president’s request, isn't what the Founders imagined when they envisioned the powers of “war and peace” in the new United States.

QuickTake U.S. War Powers

So how did this erosion of Congress's role occur? Although some have blamed the Sept. 11 attacks, and others with a longer memory have pointed the finger at the wars in Vietnam and Korea, neither characterization is correct. For good or for ill, much of the power to declare and wage war has been in executive hands almost from the beginning.

In 1787, delegates met in Philadelphia to discuss revising the older “Articles of Confederation” that governed the U.S. They quickly jettisoned these, dedicating themselves instead to crafting the document that would become the U.S. Constitution.

The delegates were almost unanimous in their belief that war powers would rest in the hands of the legislature, not the executive branch. In fact, early drafts of the Constitution specified that Congress would have the power to “make war.” This was ultimately changed to “declare war” to avoid tying the hands of the president in the case of sudden attacks. But most essential functions of war-making, and by extension, foreign policy, remained in the hands of Congress.

In this formulation, the executive simply executed the will of Congress. The president was the “commander in chief,” but when it came to decisions about going to war, continuing wars and funding wars, Congress supplied the brains, and the president provided the muscle.

Problems began with the first president. George Washington knew more about war than anyone in Congress, and he immediately shifted the balance of power between the executive and legislative branches. The catalyst was a war of sorts, but one that wouldn't be waged against the standing army of another nation.

Instead, Washington sought "buy in" to go after the Indian tribes that began attacking white settlers on the western frontier in the late 1780s. Like the Islamic State today, they posed a threat that was at once amorphous, hard to reach, and even harder to combat. The Miami and Shawnee tribes of the Ohio River Valley had scalped and murdered settlers, stolen livestock and taken civilians captive.

In 1789, Washington dutifully went to Congress, and warned lawmakers that it might be necessary to “punish aggressors” on the western frontier. Congress, preoccupied by other matters, declared that it wouldn't “hesitate to concur in such further measures” that Washington had in mind. No formal vote authorizing war was held.

That statement was all Washington needed. He called up the militia and sent it to the frontier. This and a subsequent campaign against the Indians ended in disaster, prompting recriminations in Congress. But at no point was there a formal declaration of war by Congress. Nor did Washington ask for one. Instead, he plunged further into the morass, asking Congress to establish a national army to deal with the threat.

Some legislators fought back, arguing that the state militias alone could deal with the problem. But Washington stuck to his guns, and ultimately got his way. As the historian Ryan Staude has noted, “never again did the legislature seriously battle the executive branch over the composition of the military.”

And so it was that Congress developed the habit of deferring to the executive branch, which, then as now, could rely on expertise that eluded legislators far removed from the field of battle.

Moreover, when Congress finally got information from the executive branch, it was often too late. Lawmakers could initiate inquiries after the fact, as they did in the case of Washington’s two failed campaigns against the Indians, but this wasn’t the same as formulating military policy and strategy. It was the late 18th-century equivalent of Monday-morning quarterbacking.

Although Congress occasionally regained some of its power to direct policy, most notably when it took the lead in calling for war against the British in 1812, it generally resumed its supine position in any conflict where the enemy, never mind the objectives, weren’t crystal clear.

In 1817, for example, the secretary of war instructed Major General Andrew Jackson to march into Spanish Florida in pursuit of Seminole Indians. Jackson, who had already invaded Florida on two occasions without permission from the president or Congress, proceeded to capture the Spanish garrison at St. Marks, and eventually took the Spanish fort at Pensacola.

None of this had the consent of Congress, much less the president. Many in Congress cried foul, leading to an investigation. But this quickly became a battle between defenders and detractors of Jackson, not a debate over the war powers of Congress. Indeed, a bill introduced in the House to prohibit U.S. troops from invading foreign territory without express permission from Congress went down to a resounding defeat, 112 to 42.

Jackson took some hits for his actions, but no one else in the executive branch was called to account for the episode, which ultimately led to the annexation of Florida. In the process, the political scientist William Adler has observed, “Congress essentially relinquished any pretense of primacy in war making.”

Things haven’t changed much. Congress never assumed the role that the Founders imagined, even if it has given its assent to both formal declarations of war and resolutions sanctioning military operations. But many of these votes have been taken in response to a fait accompli.

Congress eventually managed to secure passage of the War Powers Act in 1973, which sought to rein in the war powers of the executive branch. It requires the president to notify Congress within 48 hours of committing troops on the ground; it also requires a formal authorization from Congress within 60 days. But this legislation, long overdue, has been ignored and undercut by the executive branch since its passage.

So it's little wonder that presidents find so little reason to get congressional approval: Congress, though meant to shoulder the burden of declaring and prosecuting wars, long ago ceded those prerogatives. Good luck getting them back.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Stephen Mihm at smihm1@bloomberg.net

To contact the editor on this story:
Max Berley at mberley@bloomberg.net