William D Adler. Presidential Studies Quarterly. Volume 43, Issue 2. June 2013.
One of the central issues in the debates leading up to the Constitution’s ratification was the proper role of the executive. Of particular concern to many were new powers given to a president to command the military and call the state militias into national service. The well-known anti-Federalist Cato exclaimed that “He is the generalissimo of the nation, and of course has the command and control of the army, navy and militia; he is the general conservator of the peace of the union … Will not the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy or monarchy?” (Storing 1981, 113-16). Patrick Henry similarly remarked that “your president may easily become king” (Ketcham 2003, 213). In response, Alexander Hamilton in Federalist No. 69 defended the commander-in-chief power as nothing extraordinary:
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.
Congress, Hamilton averred, would remain primary in the politics of deciding when and where to go to war (Kramnick 1987, 398).
Yet in the modern period, at least, scholars have come much closer to agreeing that Cato was correct in his warning that presidents would be largely unconstrained when they decide to start a war. The consensus view among political scientists, historians, and legal experts is that the modern presidency has enabled presidential aggrandizement in war making (Schlesinger 2005). Louis Fisher, for example, has written numerous articles and books arguing that presidents nowadays are virtually unrestrained by Congress in starting unilateral wars (Fisher 1994-1995, 1998, 2000a, 2000b, 2004, 2005, 2008). Some have gone so far as to argue that this state of affairs was designed by the Constitution’s framers and is normatively desirable as well (Yoo 1996, 2005). Indeed, it seems that Hamilton’s prediction has found little support on either side of the debate about the proper balance between presidents and Congress in war making.
In a recent rereading of this state of affairs, William Howell and Jon Pevehouse (2007) have presented new data that demonstrate the means through which members of Congress still influence presidential decisions over whether to engage in armed conflict. According to them, the partisan composition of Congress, posturing in the media, and raising public doubts about potential engagements all have significant influences over presidential deliberations regarding the timing and content of military conflicts. This important new line of work, joined by that of other scholars, has raised a fresh perspective on the modern presidency and demonstrated how even the most powerful presidents face limitations on their prerogatives (Carter and Scott 2009; Kriner 2010; Marshall and Prins 201 1).
Despite the significance of these findings, something is oddly missing from these new works: an analysis of wars that took place prior to the modern era. Howell and Pevehouse, for example, state that “for much of American history … most major uses of force received formal sanctioning by both Congress and the president. While presidents occasionally pressed outward on the boundaries of their constitutional authority … Congress’s rightful place in deliberations over war appeared reasonably well established” (2007, 3). Having laid out that stark thesis, the authors proceed to ignore all military actions prior to World War II. This article aims to fill a part of this void and thereby offers a corrective to their perspective on congressional power during war. In fact, as I will show, Congress was quite limited in its ability to stop presidential war making even at the earliest moments of American history. By focusing on the congressional reaction to so-called small wars, specifically wars against Indian tribes, I will demonstrate how Congress operated mostly in a reactive position, with oversight of presidential actions occurring almost entirely after the fact. Rhetorical presidential support for Congress’s role did not accord with their practical readiness to initiate and manage hostilities unilaterally. The willingness of presidents to act against congressional wishes is therefore not necessarily a historical aberration. Theories of presidential action that assume unilateralism has arisen only in response to modern conditions require significant amendment as a result. There was never a time when presidents did not act unilaterally.
Presidential War Making and the Modern Presidency
For most of the period following World War II, presidents have undoubtedly taken the lead in deciding when and where to use the country’s armed forces. Any list of modern-day conflicts, large and small, would demonstrate this convincingly. Not one of those conflicts has been started by a congressional declaration of war. As a result, scholars have been virtually unanimous in agreeing that the Hamiltonian view of a constrained commander-in-chief has not been fulfilled.
Conflicts prior to 1 945 have not received as careful attention. As already noted, Howell and Pevehouse (2007) dismiss military engagements prior to World War II by arguing that “most major uses of force” in the premodern era were authorized by Congress. Similarly, Louis Fisher (2005, 591) states that “from 1789 to 1950, all of the major U.S. wars were either declared or authorized by Congress.” Fisher does concede that other uses of military force occurred without prior congressional consent; however he dismisses them as small engagements that involved little more than brief skirmishes against largely irrelevant nonstate actors. To the extent these conflicts did occur, he states, they were authorized by Congress and oversight was pervasive (Fisher 2004, chap. 2). According to this reading of history, which Howell and Pevehouse (2007) agree with, the normal respect that presidents had for the congressional role in war making ended abruptly upon Truman’s decision to enter into the Korean War without receiving congressional approval (Fisher 2004, chap. 4). Surprisingly, Fisher pays relatively little attention to wars against Indian tribes, mentioning one or two high-profile cases (such as the series of battles early in George Washington’s presidency) but largely disregarding many others.
The consensus stance on the expansion of presidential war-making authority fits easily into the broader perspective shared by adherents to the modern presidency thesis. As the argument goes, modern presidents (defined as beginning with Franklin D. Roosevelt, or sometimes Theodore Roosevelt) have expanded tools and resources at their disposal with which to overwhelm the system in areas including legislating, policy making within the executive branch, the rallying of public opinion, as well as unilateral war making (Greenstein 1979; Neustadt 1990). Modern presidents have increased institutional resources at their command, such as numerous staff working directly for the White House (Burke 2006; Dickinson 2005). They can use personal persuasion by “going public” and attempting to sway public opinion without working through the normal legislative process (Kernell 2006; Lowi 1985). As part of this persuasive effort, they draw on forms and means of rhetoric that premodern presidents were normatively prohibited from calling upon (Tulis 1987). Thanks to the increased use of executive orders, they make significant policy changes without consulting Congress (Howell 2003; Mayer 2001).
Recently the modern presidency literature has been challenged on a variety of fronts. David Nichols (1994), for instance, argues that the essential elements of what is often called the “modern” presidency have in fact been found among many “premodern” presidents. Michael Korzi (2004) presents new evidence demonstrating the linkages between presidents and the populace in the nineteenth century, a finding confirmed by Ellis and Walker (2007). Historian Christopher Young (2011) reveals the links between presidents and public opinion starting from Washington’s presidency. Other work has documented recurring cycles of presidential populism (Bimes and Mulroy 2004), the extent to which early presidents centralized their resources and politicized their office (Galvin and Shogan 2004), and how the partisan press was used as a method of connecting with the public (Laracey 2002). Following this trend, this article thus fits in with an emerging literature that questions the traditional- modern divide present in much of the presidency scholarship.
Small Wars and Congressional Oversight
In early America there were numerous small wars involving Indian tribes, pirates, and some European nations, in addition to larger, more protracted wars such as the War of 1812 and the Mexican- American War. Both of the larger conflicts were clearly authorized by congressional declarations of war, despite the fact that President Polk did his best to force Congress’s hand by provoking a Mexican attack (Eisenhower 1990, 50-68; Stagg 1983). The small wars, however, numbered in the dozens; even if individually relatively small (though some led to the use of thousands of troops), the cumulative effect meant protracted battles over land, resources, and trading opportunities for much of the nation’s early existence (Boot 2003; Griffin 2008; Kagan 2006).
Table 1 catalogs the major conflicts with native tribes during the antebellum period, leaving out many smaller skirmishes that occurred regularly on the frontier. Major conflicts are defined here as those involving more than 1,000 federal troops concentrated on one conflict. To this list we could also add the Quasi- War with France during the late 1790s, the conflict with the Barbary pirates during the 1800s (which had been an ongoing problem since Washington’s presidency), General Andrew Jackson’s repeated invasions of Spanish Florida, naval skirmishes in Sumatra during the 1830s, the so-called Patriot War from 1839 through 1841 on the northern border, “bleeding Kansas” during the 1850s, and the Mormon war in Utah later that decade. In addition, there were numerous instances of federal troops being used to maintain law and order in peripheral regions or to assist in the return of runaway slaves (Coakley 1988). This article will focus primarily on wars involving Indian tribes, an understudied area in the literature regarding presidential war making. Legally these conflicts are somewhat more complicated than standard interstate wars, involving what Justice John Marshall called “domestic dependent nations” (Cherokee Nation v. State of Georgia 1831). That complexity makes these conflicts quite interesting from a legal standpoint, but functionally they were no different than interstate wars. To the extent that presidents exerted control over the timing and content of decisions to go to war with Indian tribes, they were unilateral warmakers in every sense of the term.
A close examination of several of these events will show the extent to which Congress was hobbled in its ability to limit presidential war making. Oversight by congressional committees was difficult due to short sessions, lagging information from frontier regions at a time of slow communication, and a reliance on the executive branch for the information necessary to conduct investigations (Polsby 1968). Budgeting for the military usually occurred in the form of broad categories rather than line items, meaning that using the power of the purse as a vehicle for supervision of ongoing operations would not necessarily prove effective (Koistinen 1996, 56-57). As a result of these inefficiencies, oversight usually occurred only after the fact. Even the president and his cabinet were often reduced to the role of spectators while waiting for battlefield reports to trickle back toward the capital. Furthermore, Congress often wrote laws that delegated choices about when to pursue armed conflict or the expansion of the military to the executive branch (Sofaer 1976; Stevenson 2007, chap. 2).
The literature on unilateral presidential powers includes several assumptions about the structure of national institutions and how these features of our political system inhibit Congress and create space for presidential action. Howell and Pevehouse (2007) discuss some of the most important ones in their introduction. Using their perspective as a guide to early congressional- presidential wartime relations will demonstrate how little has changed in terms of the structural conditions of American politics. They begin by noting how presidents have an inherent advantage insofar as they can act first: “when presidents act unilaterally, they stand at the front end of the policy-making process” (Howell and Pevehouse 2007, 7). Many military actions are too limited in scope for Congress to have “any opportunity to coordinate an effective response, either before or during the actual intervention” (Howell and Pevehouse 2007, 7). Furthermore, the president has unity on his side: “when the president acts, he acts alone … Because presidents, as a practical matter, can unilaterally launch ventures into distant locales without ever having to guide a proposal through a circuitous and uncertain legislative process, they can more effectively manage these responsibilities and take action when congressional deliberations often result in gridlock” (Howell and Pevehouse 2007, 8). Presidents also “benefit from the substantial informational imbalance that characterizes executive-legislative relations” (Howell and Pevehouse 2007, 9)· As we will see, these fundamental characteristics of the presidency should also be applied to early American presidents and their actions during conflicts with Indian tribes. In that sense, very little has changed about presidential unilateralism.
From the start, the War Department was the executive branch agency in charge of Indian affairs. Congress did help design the licensing system for Indian trade, pass laws authorizing removal beginning in the 1830s, and the Senate ratified Indian treaties. However, as Stephen Rockwell (2010) argues, most details of Indian affairs were left to the discretion of the executive branch. The western periphery in particular was directly managed by the federal government, since there were no states or organized territories in that region (Ward 1962, 68-72, 104-6). In dealing with Indian tribes, President Washington worked closely with his secretary of war, Henry Knox (Puis 2010). Knox corresponded regularly with the governors of various states that were dealing with native populations within their borders. Southern governors were especially insistent that the national government needed to act in some way to assist them in pushing Indians further away from areas settled by white Americans (Cay ton 1992). When asked for permission to progress with attacks, Knox did tell the officials that they needed congressional permission to fight (Wormuth and Firmage 1989, 77). At the same time he consistently told them to wait for presidential authorization before proceeding. For example, in letters to the governors of Georgia and Virginia on July 11, 1792, and August 31, 1792, Knox (War Department Correspondence, National Archives) told them to use defensive measures only and take no offensive actions without the president’s sanction. The governor of the Southwest Territory, William Blount, was explicitly informed on March 31, 1792 (War Department Correspondence, National Archives) that he could call the militia into service for “defensive” purposes only. It seems that Knox believed that either Congress or the president could authorize them to act.
More well known is the series of battles that occurred in the northern Ohio Valley region around the same time. White settlers began complaining about Indian depredations in the region as early as 1786. Knox and Washington initially preferred to use diplomacy and avoid the use of force. However, when negotiations proved insufficient, Washington ordered General Josiah Harmar to take military action. In October 1790, Harmar’s ill-prepared forces were defeated in a shocking rout. The president fired Harmar and replaced him with Arthur St. Clair, the governor of the Ohio Territory. Congress agreed to Washington’s request to provide more troops, but in mid- 1791 St. Clair’s forces were again overpowered by the local tribes. In 1792, Washington and Knox asked Congress to increase the army to 5,000 men in preparation for yet another battle. Southerners in Congress were opposed to the deployment, but it passed on the strength of northern and western support. General Anthony Wayne was put in charge and with Knox’s help created a more effective and better disciplined force. Wayne defeated the Indians in mid-1794 at the Battle of Fallen Timbers, providing a major strategic victory to the United States in securing the Old Northwest (Anderson and Cayton 2005, 191-95; Calloway 2007; Kohn 1975, 92-104).
During the conflict, Congress does not seem to have comprehended just how much power it had delegated to the executive branch. Wormuth and Firmage (1989, 127-28) correctly point out that Congress did on several occasions authorize the president to call up state militias for the purpose of battling Indian tribes. As Richard Kohn (1975, 97-98) explains, however, when St. Clair asked for permission to call up the militia, Congress authorized it, but “only later, after Washington cited the amendment as authorization for Harmar’s campaign, did Congress understand fully that it had given the President permission to wage war on his own authority.” Similarly, when Congress appropriated $1 million to fund the ongoing operations, this was taken by the administration as an implicit authorization to continue the fighting; at no time did anyone think of asking for a formal resolution allowing the war to progress (Waghelstein 2001). Later, under Thomas Jefferson’s presidency, Congress permanently delegated the ability to call up state militias to the president, abdicating even this limited role in war making (Coakley 1988, chap. 4).
After St. Clair’s defeat, Congress appointed a special investigative committee on the entire matter. Historian Charles Stevenson notes that the committee’s primary method of gathering evidence consisted of sending requests for information and documents to the Department of War, and then making those documents public as part of its report. But Congress was, in general, “reluctant to take formal action that might be seen as restricting military strategy” (Stevenson 2007, 55). The committee’s final report mostly sidestepped the issue of blame for the expedition’s failure. Three issues were singled out: a delay in supplies reaching the troops, purchasing delays in the Quartermaster’s office, and “the want of discipline and experience in the troops” (Causes of the Failure of the Expedition Against the Indians in 1791, 8 May 1792, American State Papers: Military Affairs 1.41-44). After this account had been submitted, representatives discussed a resolution that would have required the secretaries of war and the Treasury to appear in person before the entire House. Those in favor pointed out that the report “exculpated the commanding officer” and that this seemed inconsistent with the available facts (Annals of Congress 1792, 682). Here was a perfect opportunity for Congress to take direct aim at the president’s choice of military commanders. Instead the House rejected the resolution, with James Madison arguing it was unconstitutional to require cabinet secretaries to appear before the entire House, or at least it was unwise as a matter of practice (Annals of Congress 1792, 679-84). Madison then convinced the House to recommit the report back to committee (Annals of Congress 1792, 685-89). Interestingly, no such committee was created after Harmar’s initial defeat. The army conducted its own inquiry and reported its findings to Congress (Court of Inquiry on General Harmar, 24 September 1791, American State Papers: Military Affairs 1.20-30). On both occasions, it was left to Washington and Knox to decide that a new commander should be appointed and that the war would continue.
A similar pattern of disengagement by Congress was displayed in the course of the conflict with the Creek and Seminole tribes in the South. Since the 1780s, the state of Georgia had been pressing the federal government to use force against the Creeks, in an attempt to open their lands to white settlement. Georgia’s demands were especially problematic since the Creeks had long been allies of the Spanish, who held nearby Florida and remained a competitor to the United States. The pre-Constitution Congress attempted to negotiate with a group of Creeks led by Alexander McGillivray, but the commissioners were unable to reach a settlement. When Washington became president, he quickly appointed three new commissioners, David Humphreys, Benjamin Lincoln, and Cyrus Griffin. The Senate consented to the nomination, but no record exists of what debate, if any, took place. Negotiations initially seemed doomed, as the American commissioners insisted upon expansive territorial claims on behalf of Georgia. Washington and Knox then decided to make one last attempt, and they invited McGillivray to New York. Again the talks seemed headed nowhere until Secretary of State Thomas Jefferson recommended a secret treaty provision that gave McGillivray and his group exclusive trading rights from Creek areas. The Treaty of New York was concluded in 1790, and the Senate was informed of the secret language, to which it consented (Watson 1980; Wright 1967).
However, not all Creeks accepted the treaty, and tensions remained high. A Creek civil war was soon precipitated by the American effort to “civilize” the tribe, though no American troops were involved at first. The Red Sticks, a militant faction of Creeks, opposed Americanization. When local white settlers attacked a party of Red Sticks, they responded in turn by killing dozens of whites at Fort Mims. Outraged American forces attacked the Creeks, with General Andrew Jackson nearly destroying the entire tribe at the Battle of Horseshoe Bend in early 1814. Secretary of War John Armstrong delegated to Jackson the authority to arrange a new treaty, which Jackson made sure was on terms highly unfavorable to the entire Creek tribe. The Treaty of Fort Jackson was signed on August 9, 1814, and ratified by the Senate shortly thereafter (Heidler and Heidler 2003, 7-27; Hurt 2002, 119-33). At no time during the fighting did the executive branch consult Congress on how to proceed; nor did Congress make any attempt to investigate during or after, with the only exception being the brief debate prior to ratifying the treaty. The executive branch acted first and Congress could not manage to put together an effective response.
Much of the struggle for control of land and resources in this region was driven by the American desire to seize more of Florida, through any means necessary. The borders of the Louisiana Purchase were unclear, with the U.S. government arguing that it rightfully included Spanish-controlled West Florida. The actions of Presidents Madison and James Monroe clearly indicated their willingness to use force or at the very least their consent to the actions of others who used force without explicit permission. In 1810, for instance, Madison secretly authorized the army to grab West Florida, an action that Congress did not protest (Heidler and Heidler 2003, 31). Only later, during the War of 1812, did the House pass a resolution giving the president the right to annex any part of Florida he wished (Heidler and Heidler 2003, 36).
The war with Great Britain led to increased tensions with the Creeks as well as the Seminóles, both of whom allied with the British and launched raids into Georgia and Tennessee. After the war Americans began illegally squatting on Indian lands, some of them on the Florida side of the border, and the situation rapidly deteriorated. Southerners continued to push for annexation of Florida even as the Madison and Monroe administrations resisted starting another conflict. Ongoing skirmishes did persist, however, many led by Andrew Jackson. On three separate occasions Jackson invaded Florida without permission from the president or the secretary of war, much less from Congress. The first time was toward the end of the War of 1812, when Jackson’s forces briefly seized Pensacola. Upon receiving orders to relinquish it, Jackson retreated back across the border (Missall and Missall 2004, 24). The second instance involved an abandoned British fort that had been taken over by runaway slaves and Seminóles, known as Negro Fort. Slave owners protested its existence as an incentive for slaves to try and flee. Without receiving any orders from his superiors in Washington, Jackson decided he would remove the threat. On July 9, 1816, Secretary of War William Crawford even specifically ordered Jackson not to take any actions without prior authorization (War Department Confidential and Unofficial Letters, National Archives). As Heidler and Heidler (2003, 70) note, “the War Department remained ignorant of Jackson’s extensive preparations for war” until it was too late to do anything about them. Jackson sent Brigadier General Edmund Gaines into Florida with instructions to destroy the fort, which he did in July 1816. After the incident, Jackson again returned to the United States as President Madison and the Spanish government chose to ignore what had happened (Heidler and Heidler 2003, 59-75; Missall and Missall 2004, 25-31). Throughout, Jackson had been conducting his own surveys that demarcated extra land for Tennessee into Cherokee-controlled areas, while also protecting whites settling on Indian lands, against War Department policy (Wallace 1993, 50-52).
Jackson’s third unauthorized invasion of Florida led to its eventual annexation. As the situation on the Georgia-Florida border deteriorated, with whites submitting increasing numbers of complaints about Seminole raids, Jackson returned. On December 29, 1817, a letter from Secretary of War John C. Calhoun noted that Jackson had ordered those serving under him to ignore all orders from the War Department unless they came through him first (War Department Letters, National Archives; Heidler and Heidler 2003, 90-92). Jackson made the case to President Monroe and Calhoun that the Spanish were protecting the Seminóles and needed to be stopped. Despite receiving explicit orders from Calhoun on December 28, 1818 (War Department Confidential and Unofficial Letters, National Archives), not to attack the Spanish, Jackson’s forces took the fort at St. Marks, Florida, in mid- 18 18. Jackson refused to leave Florida until there was an annexation treaty. The ensuing uproar let a not-particularly-unhappy Monroe administration negotiate the purchase of Florida in the Adams-Onis Treaty of 1 8 1 9 (Heidler and Heidler 2003, chaps. 5 and 6). Again, there is no record of Congress attempting to stop the ongoing invasions, with southern members of Congress sometimes celebrating Jackson’s lack of respect for the chain of command. Congress was not even in session when word of Jackson’s exploits came to Washington, muffling some of the criticism (Heidler and Heidler 2003, 201).
This final incident did, however, lead to a debate in the House over Jackson’s conduct as well as an investigation conducted by the Committee on Military Affairs. Interestingly, no one saw fit to disparage or investigate President Monroe or Secretary of War John C. Calhoun. The committee’s mandate allowed it only to zero in on one particular aspect of Jackson’s operation that led to the death of two British citizens, and the majority did criticize Jackson’s actions (Heidler 1993). Speaker of the House Henry Clay subsequently introduced four resolutions of censure against Jackson. He famously scolded Jackson, saying, “Remember that Greece had her Alexander, Rome her Caesar, England her Cromwell, France her Bonaparte, and that if we would escape the rock on which they split, we must avoid their errors” (Howe 2007, 105-6). After much debate, however, the House rejected all the censure motions, including a 112-42 vote against a bill that would have prohibited American troops from entering foreign territory without congressional permission (Howe 2007, 106). As historian David Heidler (2003, 517) notes, “James Monroe and his war department emerged from the congressional controversy virtually untouched by criticism.” No further investigation was conducted, as Congress essentially relinquished any pretense of primacy in war making. While presidents were also somewhat removed from many of Jackson’s actions, it certainly could not be argued that Congress took charge of war making here. Here we see Congress acting in an uncoordinated manner, as the literature on presidential unilateralism would suggest, even though it did not rebound to the benefit of the president in this case. Congressional disorganization was not necessarily an invitation for presidential action but merely a ceding of responsibility to any other actor, including commanders on the ground.
When Jackson became president in 1829, he made passage of an Indian removal bill one of his top legislative priorities (5. Doc. No. 1, 21st Cong., 2nd Sess. 1830; H. Doc. No. 2, 22nd Cong., 1st Sess. 1831). Though removal had essentially been de facto American policy for many years, the Indian Removal Act of 1830 formalized the process by compelling the movement of all tribes to west of the Mississippi River. As Stephen Rockwell (2010, chap. 6) notes, the new law shifted all responsibility for the Indian question to the executive branch, as Congress was not interested in the details of how removal would be administered. Problems with the Seminóles in particular had continued even after the American annexation of Florida. The tribe reluctantly accepted the Treaty of Moultrie Creek, which required them to move to the center of Florida. Most declined to leave their lands. As white settlers poured in, the situation was tense, but there were only limited outbreaks of violence in the 1820s. After Indian removal became national policy, however, officials from the War Department became more insistent that the Seminóles must leave. When the mass of Seminóles refused to leave by the 1835 deadline, open war broke out, involving thousands of troops. In fact, this was the largest military engagement for the nation since the War of 1812, reaching a top force level of 9,000 soldiers in Florida by 1837. Though the worst of the fighting was over by 1838, ongoing skirmishes persisted until 1858, when the final group of Seminóles agreed to leave. Details of the war were managed by the War Department and military commanders, with little interference from Congress (Missall and Missall 2004, chaps. 5-10; Welsh 1978).
Before removal became official national policy, the Sauks, who lived in present-day Wisconsin and Illinois, had sold much of their land to the United States in a series of treaties they signed right after the War of 1812. They had agreed in 1816 to move westward, but no one placed any pressure on them and they still occupied the region. In the mid- 1820s, whites began to come into the area and demanded the Indians’ removal. In 1825, Secretary of War James Barbour and Governor Lewis Cass of Michigan negotiated the Treaty of Prairie du Chien with the Sauks, which required them to surrender their remaining lands east of the Mississippi. One chief by the name of Black Hawk was not a party to the talks, however, and he refused to comply. Over the course of the late 1820s, the governors of Illinois urged the War Department to use force, but only in 1832 was General Henry Atkinson sent in with 220 regulars and 2,600 militiamen. The War Department and the president made the decision to send him in, not Congress. Congress operated in a reactive fashion, as the literature on presidential unilateralism would suggest. Atkinson captured Black Hawk in August of that year, and by the end of the year the Sauks had been forced west of the Mississippi. Black Hawk’s defeat dispirited other tribes in the area, such as the Winnebagos and Potawatomies, who gave in shortly thereafter and were also removed under army escort. With this victory, the army expunged the Indian presence from Illinois and secured the state for white settlement (H. Doc. No. 2, 22nd Cong., 1st Sess. 1831; Hurt 2002, 164-88; Prucha 1969, 212-31).
Some tribes, like the Choctaws, moved to the West after feeling just mild pressure—a threat from Secretary of War John Eaton was enough to persuade them to move by 1833 (Hurt 2002, 138-44, Prucha 1969, 254-57), though Eaton implausibly claimed that “no threat was used; no intimidation attempted” (S. Doc. No. 2, 21st Cong., 2nd Sess. 1830). The Creeks and Cherokees resisted the longest. Despite agreeing in 1832 to leave Georgia, the Creeks did not finally move west until forced in 1836 by 1,100 federal troops under the command of General Winfield Scott (Hurt 2002, 144-5 1; Prucha 1969, 258-61). Presidents Monroe and John Quincy Adams had both previously tried to make the Cherokees move voluntarily, but they held out until 1838, when they were driven westward in the infamous Trail of Tears that led to the deaths of thousands (Hurt 2002, 154-63; Langguth 2010; Prucha 1969, 262-68). All of these actions were taken at the direction of the executive branch, managed primarily by the War Department and commanders on the ground. Although Congress had authorized removal in the Indian Removal Act, it was not deeply involved in the details of removal policy.
Scholars have largely accepted the notion that in early America, presidents were deferential to Congress in times of war, with perhaps a few exceptions to the rule. David Currie (2000), for instance, has shown how presidents always said they supported Congress’s role in war making. The evidence presented in this article, however, suggests that their rhetoric was merely a cover for their true actions. The rhetorical position adopted by the majority of antebellum presidents simply does not accord with their practical readiness to initiate hostilities when they felt it necessary. Congress had relatively little influence over when and where presidents, secretaries of war, and military officers decided to use force. Investigations during and following the conclusion of conflicts were infrequent, rarely influential, and produced no repercussions against those responsible for beginning and managing wars against Indian tribes. There are simply no significant examples of Congress successfully mitigating presidential control over Indian wars. At best, we might agree with one historian that “Congress has been inconsistent in asserting its constitutional prerogatives” (Stevenson 2007, 6).
The conventional wisdom about presidential unilateralism in warfare emerging in the modern period is therefore wrong in this regard. There was never a golden age of congressional primacy in war making, never a time when presidents did not strive to exercise their constitutional prerogatives to the utmost. Ironically, a close examination of the history of small wars demonstrates that history cannot explain the rise of presidential unilateralism. Rather, presidential success in acting unilaterally is a structural feature of the American political system. Presidents have always had informational advantages that Congress did not enjoy, especially at a time of slow communication with the frontier; presidents always were able to act first and put Congress in a reactive position; and Congress has always found it difficult to act in a coordinated manner in response to presidential war making.
We should also note that the success of unilateral presidential war making in the early republic does not seem to have been driven by any clear partisan or sectional factors. The presidents discussed in this article (Washington, Madison, Monroe, and Jackson), while they did often enjoy unified government, did not always have the full backing of their erstwhile congressional allies. Washington served in a somewhat prepartisan era and ended his second term amidst fighting with the Jeffersonians over his entire political program. Madison and Monroe suffered from serious factional disputes within their parties. Perhaps only Jackson had the full backing of his party. Similarly, while the West often pushed for federal intervention into disputes with Indian tribes (or outright removal), it was not always successful in receiving the help it desired.
Recent new studies about Congress’s important part in war making politics are not so much wrong as they are incomplete. A more comprehensive picture can only come through historical inquiry that includes all wars, not just those in the modern era. Treating Indian conflicts as being less than true wars simply does not capture the realities of warfare in early America, where continual hostilities with native tribes persisted for long stretches of time. Different perhaps from traditional battles between nation-states with organized armies, they nevertheless were wars in every sense of the word (Grenier 2005).
In the final analysis, I would suggest that Cato seems to have been at least partially correct when he worried about the president becoming the “generalissimo of the nation.” Hamilton’s energetic president became more powerful than he could have anticipated, rapidly gaining a position of strength in war making that Congress could not match. The structural advantages that the Constitution gives the president, coupled with an antebellum Congress that was only able to weakly investigate executive branch actions, meant that presidents in the premodern era were often just as capable as modern presidents of using their office’s privileges to make war at their own discretion.