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Terence Jeffrey / Jun. 19, 2019

Trump Should Follow Washington, Not Obama, on the Use of Force

Question: Would President George Washington have launched an offensive military action without prior authorization from Congress?

Question: Would President George Washington have launched an offensive military action without prior authorization from Congress?

Answer: no.

Why? Because Washington understood and obeyed the original intent of the framers of the Constitution, who gave Congress, not the executive, the power to initiate war and control its scope.

Question: Would President Barack Obama launch an offensive military action without prior authorization from Congress?

Answer: Yes. He did in Libya.

Why? Because Obama did not abide by the Constitution. He based his intervention in Libya’s civil war on a UN resolution.

Will President Donald Trump follow in the footsteps Washington or Obama when it comes to the use of military force?

The Constitution gives Congress the power to “declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

When the Constitutional Convention debated this clause in 1787, Washington — who served as president of the convention — personally witnessed what was said and done.

James Madison took notes.

The original language presented to the convention that day said Congress shall have the power “to make war.”

Pierce Butler of South Carolina, as recorded by Madison, suggested: “He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.”

No other delegate spoke in favor of this proposal.

Elbridge Gerry of Massachusetts, according to Madison’s notes, “never expected to hear in a republic a motion to empower the Executive alone to declare war.”

George Mason of Virginia “was agst giving the power of war to the Executive, because not safely to be trusted with it.”

Madison himself joined Gerry in offering an amendment “to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks.”

The convention approved this amendment. The Constitution gave Congress the power to declare war — thus, as Madison put it, “leaving to the Executive the power to repel sudden attacks.”

It did not give the president the power to launch sudden attacks.

How did George Washington interpret the original intent of his fellow framers?

As noted by scholar Louis Fisher in his definitive book on this issue — “Presidential War Power” — Congress enacted legislation in 1789 authorizing the president to call up militia “for the purpose of protecting the inhabitants of the frontiers of the United States from hostile incursions by Indians.”

“In 1790 and again in 1791,” Fisher writes, “Congress passed new authorizations to protect the inhabitants in the frontiers.”

But, as Fisher explained, neither Washington nor Henry Knox, his secretary of war, believed Congress had authorized Washington to launch offensive attacks against the Indians.

“Throughout this period the executive branch understood that its military operations against Indians were limited to defensive actions,” Fisher wrote.

They stuck to this position even after William Blount, governor of the Southwest Territory, wrote to Knox on Sept. 11, 1792 (in a letter cited on the National Archives Founders Online website) to inform him that “the five lower towns of the Cherokees have declared War against the United States.”

Knox responded that Blount could use militia to defend the frontier but not to launch an offensive.

“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,” said Knox. “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.”

On July 24, 1793, Knox and Gen. Andrew Pickens sent a memorandum to Washington assessing the threat posed by the Creek Nation on what was then the nation’s southwest frontier.

This memorandum (also available on the Founders Online website) said that Pickens was “decidedly of opinion that a demonstration of the power of the United States to punish the Creeks is the only measure which can be adopted to secure from their cruel depredations the Inhabitants of the South Western frontiers.”

On Aug. 28, 1793, Washington wrote to then-South Carolina Gov. William Moultrie.

“Having conceived an opinion highly favourable to General Pickens, I invited him to repair to this City in order that I might obtain from him such facts & information as would be essential to an offensive Expedition against the refractory part of the Creek nation, whenever Congress should decide that measure to be proper & necessary,” Washington said.

“The Constitution,” Washington continued, “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 authorised such a measure.”

Washington then cited reasons a war might be unwise.

“It is essential (which is communicated to you in confidence),” he told the governor, “that under the present circumstances it is not improbable but that an offensive Creek War might bring on a war with an European power, whose possessions are in the neighborhood of the Creeks.”

He was referring to Spain.

Following both his correct understanding of the constitutional limits on presidential power and a prudent analysis of how small wars can lead to bigger problems, Washington maintained the peace.

Trump should embrace Washington’s wisdom as he ponders what path to take in the Persian Gulf.

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