The president's power to respond to attacks

Cornell Law Review

Volumn 93, Issue 1, 2007, Pages 169-195

  Ramsey, Michael D ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 38149130434     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (61)

1. Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by "Declare War," 93 CORNELL L. REV. 45 (2007).
2. See U.S. Const, art II, § 1 ("The executive Power shall be vested in a President of the United States of America."); id. § 2 ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . ."); id. art. I, § 8 ("The Congress shall have Power . . . . [t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures . . . ."); see also Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 234 (2001) (describing the Constitution as giving the President "residual" foreign affairs powers not allocated elsewhere).
3. 1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (London 1773) (defining "declare").
4. See Prakash, supra note 1, at 67-94.
5. See MICHAEL D. RAMSEY, THE CONSTITUTION'S TEXT IN FOREIGN AFFAIRS 218-38 (2007);
6. Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 1548-1609 (2002).
7. This view is advanced (somewhat tentatively) in RAMSEY, supra note 5, at 239-45 and Ramsey, supra note 5, at 1622-31. Unleashing's powerful contrary arguments inspire me to revisit the issue fully. Like Unleashing, I address here only the Constitution's historical meaning without making claims about modern interpretation.
8. See Prakash, supra note 1, at 56-58.
9. For example, it is not clear whether counterattacks to recapture U.S. territory from an enemy should be called offensive or defensive; the characterization does not matter, however, for present purposes, either in assessing Unleashing's argument or in correctly describing the President's constitutional power.
10. See Prakash & Ramsey, supra note 2, at 252-65.
11. Prakash, supra note 1, at 47, 49.
12. Id. at 94.
13. See id.
14. 2 JOHNSON, supra note 3 (defining "war").
15. 1 id. (defining "declare").
16. See Prakash, supra note 1, at 94-112 (discussing "response declarations").
17. Id. at 96.
18. See, e.g., THE FEDERALIST, Nos. 2-5 (John Jay) (beginning the defense of the proposed Constitution by discussing its advantages in providing for protection against foreign attack).
19. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 318 (Max Farrand ed., rev. ed. 1966); see also Prakash, supra note 1, at 85 (noting other similar statements).
20. See Prakash, supra note 1, at 57.
21. Id.
22. See NIALL FERGUSON, THE WAR OF THE WORLD: TWENTIETH-CENTURY CONFLICT AND THE DESCENT OF THE WEST 432-42, 533-37 (2006).
23. See 2 JOHNSON, supra note 3 (defining "war").
24. See 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 162-63 (n.p. 1672).
25. J.J. BURLAMAQUI, THE PRINCIPLES OF POLITIC LAW 223 (Nugent trans., London, J. Nourse 1752).
26. 2 EMMERICH DE VATTEL, THE LAW OF NATIONS Book III, ch. I, at 1 (London, J. Coote 1759).
27. 2 CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM 311 (Joseph H. Drake trans., Clarendon Press 1934) (1749).
28. RICHARD LEE, A TREATISE OF CAPTURES IN WAR 2 (London, W. Sandby 1769);
29. see also THOMAS RUTHERFORTH, 1 INSTITUTES OF NATURAL LAW 470 (Cambridge, W. Thurlbourn 1754) ("War is a contention by force. . . . Nations are said to be at war with one another, not only when their armies are engaged, . . . but likewise when they have any matter of controversy or dispute subsisting between them, which they are determined to decide by the use of force . . . ."). On the importance of international law treatises in founding-era America, see RAMSEY, supra note 5, at 182 & nn.23-24.
30. See, e.g., BURLAMAQUI, supra note 24, at 240; VATTEL, supra note 25, at 23.
31. See HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE 456-59 (William Evats trans., London 1682) (1625).
32. U.S. CONST. art. I, § 10, cl. 3.
33. See Prakash, supra note 1, at 57-58.
34. 1 JOHNSON, supra note 3 (defining "declare").
35. Ramsey, supra note 5, at 1590-96.
36. See LEE, supra note 27, at 47; VATTEL, supra note 25, at 2-3.
37. Unleashing finds little in the drafting or ratification debates bearing on the matter. The strongest support is probably Madison's Convention statement, discussed above, that changing Congress's power from "make" to "declare" war would leave the President the power to repel sudden attacks. See supra note 18 and accompanying text. Unleashing reads this to mean that the President could make defensive responses but, by implication, not offensive responses. Perhaps so, but perhaps not: a counteroffensive may, for example, be used to "repel" attack by forcing the attacker to defend its own territory. In any event, Madison was not addressing that specific question, and, as discussed below, when that question came up later, Madison came down on the side of allowing the President to make offensive responses.
38. See Prakash, supra note 1, at 97-101. In assessing these and subsequent events, I am especially indebted to the invaluable legal histories of Abraham Sofaer and David Currie. See DAVID CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801 (1997) [hereinafter CURRIE, FEDERALIST PERIOD];
39. DAVID CURRIE, THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS 1801-1829 (2001) [hereinafter CURRIE, JEFFERSONIANS];
40. ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS (1976).
41. Prakash, supra note 1, at 97-98 (citing Extract of a Letter from Andrew Pickens to General Clarke (Apr. 28, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS 369, 369 (Walter Lowrie & Matthew St. Clair Clarke eds., D.C., Gales & Seaton 1832)).
42. 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 37, at 369.
43. Letter from Edward Telfair to Henry Knox (July 24, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 37, at 370, 370;
44. see 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 37, at 369-70 (containing letters indicating a lack of material hostilities).
45. Letter from Henry Knox to Major Gaither (Apr. 29, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 37, at 367, 367.
46. Letter from Henry Knox to Edward Telfair (Sept. 5, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 37, at 365, 365;
47. see also Letter from Henry Knox to Edward Telfair (June 10, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 37, at 364, 364 (urging the importance of avoiding war with Creeks);
48. Letter from Charles Weatherford to James Seagrove (June 11, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 37, at 395, 395 (Creek chief writing to Indian agent that "[h]ad there been an appearance of war, you should have seen me, but, at present, there is a stop put thereto");
49. Letter from Henry Knox to Edward Telfair (July 19, 1793), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 37, at 365, 365 ("[N]o information ha[s] been received of any late depredations of the Creeks.").
50. See Letter from Henry Knox to Governor Lee (Oct. 9, 1792), in 4 AMERICAN STATE, PAPERS: INDIAN AFFAIRS, supra note 37, at 261, 261;
51. Letter from Henry Knox to Governor Pinckney (Oct. 27, 1792), in 4 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 37, at 262, 262. Washington's message to Congress of November 6, 1792 related that "[a] part of the Cherokees, known by the name of Chickamaugas, inhabiting five villages on the Tennessee River, have long been in the practice of committing depredations on the neighboring settlements" and noted that these depredations had continued despite the 1791 peace treaty with the Cherokee, but Washington did not mention the supposed declaration of war nor indicate that the Cherokee nation as a whole was at war with the United States.
52. George Washington, Fourth Annual Address to Congress (Nov. 6, 1792), in 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 125, 126 (James D. Richardson ed., D.C., Government Printing Office 1896). Similarly, Washington's message to Congress of December 3, 1793 referred to "war" with Indians in the Ohio Valley, but only to an "anxiety . . . for peace with the Creeks and the Cherokees," not to any existing war with those tribes.
53. George Washington, Fifth Annual Address to Congress (Dec. 3, 1793), in 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, supra, at 138, 141. In this context, Washington went on to say that "offensive measures against [the Creeks and Cherokees have been] prohibited during the recess of Congress," and that while various efforts have been made to encourage good relations with these tribes, "the papers which will be delivered to you disclose the critical footing on which we stand in regard to both those tribes, and it is with Congress to pronounce what shall be done." Id. Notably, Washington did not ask Congress to declare war or authorize hostilities; he merely communicated information. Again, in a message to Congress on January 30, 1794, Washington referred to "difficulties" with the Creeks but not to war.
54. See George Washington, Message to Congress (Jan. 30, 1794), in 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, supra, at 150, 151. Congress's reply to Washington's 1793 annual message similarly referred to "war" existing in the Northwest but did not use that term to describe the situation in the Southwest.
55. 4 ANNALS OF CONG. 139 (1793).
56. See Prakash, supra note 1, at 98-101.
57. See 4 ANNALS OF CONG. 499-504, 696-97, 774-79 (1793-1794).
58. See RICHARD H. KOHN, EAGLE AND SWORD: THE FEDERALISTS AND THE CREATION OF THE MILITARY ESTABLISHMENT IN AMERICA, 1783-1802, at 95-127, 139-57 (1975); SOFAER, supra note 36, at 119-27.
59. See KOHN, supra note 45, at 91-157.
60. Representative Fisher Ames, opposing increases in the military for the southwest frontier, stated: "We have one Indian war already [referring to the conflict in the Northwest], which is enough at a time." 4 ANNALS OF CONG. 776 (1794).
61. See Prakash, supra note 1, at 98-99. These were plainly offensive actions, at least by most definitions: they contemplated attacks into territory held by the tribes in order to destroy towns and inflict injury. See CURRIE, FEDERALIST PERIOD, supra note 36, at 84-85;