Interpretations of Commander-In-Chief Clause by Members of Congress

Subordinate or dictator? Interpretations of commander-in-chief clause by members of Congress

Casey Dominguez Department of Political Science and International Relations University of San Diego [email protected]

Paper prepared for presentation at the Annual Meeting of the American Political Science Association, Washington, D.C., September 2-5, 2010

Subordinate or dictator? Interpretations of commander-in-chief clause by members of Congress1

This paper reports preliminary results of a more extensive project to understand the intellectual and legal history of the commander in chief clause of the U.S. Constitution. This project hopes to eventually develop a rigorous explanation of when, and why, the balance of war powers between Congress and the president has changed over time by content analyzing members of Congress’ references to the commander in chief clause. Focusing on four declared wars, this initial paper, based on an ongoing data collection effort, aims only to test a few simple hypotheses. First, it tests, and shows support for, the claim that the president’s inherent war powers were understood to be far more limited during the early Republic than during the twentieth century. The data also suggest that major changes in the nation’s understanding of the inherent war powers of the president took place far earlier than is usually recognized in the existing literature. Second, it tests whether it has always been the case that members of the president’s party argue for more expansive presidential war powers, and that members of the opposing party argue for more limited presidential war powers. It finds support for both hypotheses in the nineteenth century, with evidence of a major shift toward presidential power by partisan opponents of the president at the beginning of World War I.

Students of American institutions should naturally be interested in the relationships between the president and Congress. However, the evolution of war powers falls into a category of inquiry that is important not just to studies of the presidency or to students of history, but also to the field of American Political Development. Among Orren and Skowronek’s recommendations for future work in American Political Development, they argue that ―shifts in governing authority,‖ including and especially shifts in the system of checks and balances, ―are

2 important in historical inquiry, because they are a constant object of political conflict and they set the conditions for subsequent politics, especially when shifts are durable‖ (Orren and

Skowronek 2004, 139). How an essential constitutional power, that of deploying military force, changed hands from one institution to another over time, would certainly seem to qualify as a durable shift in governing authority.

While the text of the Constitution and the powers it grants have not changed over time, the authority, or accepted right, to initiate hostilities, does seem to have shifted from the

Congress to the president. The historical evidence presented by Louis Fisher (2004) and others

(Gibbons 1987, Van Wynen Thomas and Thomas 1982, Wormuth and Firmage 1986) demonstrates that presidents and Congresses of the founding generation, whose actions presumably reflect the original understanding of the Constitution, behaved as if they believed that presidents’ only unilateral power to use force was to briefly defend the nation against sudden attacks, and that Congress maintained power over the offensive use of force in both perfect and imperfect wars (Fisher 2004, 3, 7). Thomas Jefferson, for example, authorized naval vessels in the Mediterranean to defend the nation if fired upon by one of the Barbary powers who was demanding a tribute, but went to Congress for permission to engage in any offensive maneuvers

(Fisher 2004: 34). Abraham Lincoln, famous for his own unilateral mobilization of the army, naval blockade, and suspension of habeas corpus, believed his own actions were illegal Fisher contrasts this early shared understanding of the constitutional distribution of war powers with modern arguments. He cites, for example, the statement by Senator Judd Gregg, about President

Clinton’s decision to send ground troops to Bosnia in 1995: ―Clearly, the power to undertake actions which put American soldiers’ lives in harm’s way lies primarily and first with the

President,‖ (Fisher 2004, 185).

There is a minority viewpoint, however, which argues that the Constitution gave the president broad unilateral powers to defend the nation, including the ability to deploy troops into hostile environments for offensive purposes. These proponents would probably claim that since there has been no change in presidential authority, there is nothing in this subject to study (Yoo

1996, 2002). Examining statements made by members of Congress about the president’s powers as commander-in-chief can supply concrete evidence to help resolve this debate over whether a change in power has actually occurred.

Moreover, if there has been a change over time in the powers assumed to be inherent in the commander-in-chief clause of the Constitution, the next task is to identify precisely when, and why, our collective understanding of the president’s inherent war powers grew over time.

This paper hopes to trace changes in that authority by examining members’ of Congress perception of their own and the president’s powers through close reading of congressional debates during declared wars. I focus on declared wars because these are periods when presidential power would be theoretically uniform, and at its maximum, and therefore it should be more straightforward to detect changes in perceived authority. I hope, in the future, to extend this work to undeclared wars and periods of ―peace‖ as well.

We could, in theory, look to many different sources of information (court cases, op-eds, textbooks, law journals) to understand how our collective interpretations of the Constitution changed over time. Others have focused on the role the court, in particular, has played in the expansion of presidential war powers (e.g., Rossiter 1951, Silverstein 1994). However, especially because courts so rarely intervene in these issues, the most relevant actors to questions about the distribution of powers between the president and Congress are presidents and members of Congress themselves. Since war powers are shared by the two branches (at least on paper),

Congress is the actor that literally empowers the president, either by its silence or by its active delegation of its own authority. It is, therefore, appropriate to look to Congress for clues about how it construes the balance of power. It is not unreasonable to assume that the dominant beliefs about the constitutional war powers of both branches would have some impact on the actions

Congress as a body takes. If, for example, members of Congress do not believe that the commander in chief clause confers a certain power (to move troops into another country unilaterally, to issue credible threats without Congress’ permission, to acquire territory), they may hold presidents accountable who take that power upon themselves, as Congress did by censuring James K. Polk for initiating the Mexican-American War. Similarly, if the prevailing opinion in Congress is that the commander-in-chief clause does confer a particular power upon the president, they may defer to him passively or pass legislation supporting the use of that power. Therefore, one way to understand when and why presidential war powers grew is to try to understand how members of Congress perceived those powers.

This paper begins by collecting and analyzing the statements made by members of

Congress in the Congressional Record. At the very least, statements in the Congressional Record

(or the Annals of the United States Congress, or the debates reported in The Congressional

Globe, as historically appropriate), tell us about the conventional wisdom regarding the war powers of the president and Congress at a particular point in time. Analyzing each specific instance in which a member of Congress referred to the president as the ―commander-in-chief‖ can help us better understand what powers members of Congress concede to the president as a result of that constitutional phrase, and what powers they argue are not encompassed by the phrase. It also gives us a dataset in which we can measure change in usage over time.

There is a large literature on the balance of war powers that spans the fields of history, law, and political science. A survey of this existing research on war powers does not identify one single, coherent explanation of how and when the authority to deploy troops changed over time.

There are, rather, several competing (often implied) hypotheses, although most are not articulated as such, and most are not tested explicitly. The first, and most common hypothesis, is that there was something about the post-World War II period that changed the way the nation, and the Congress, thought about whether Congress or the president should have the authority to initiate the use of force. Sundquist attributes the increased deference to the president to the Cold

War consensus (as do Stern and Halperin 1994: 1), and to reaction against congressional isolationism prior to the war (Sundquist 1981:111). Laurance (1976) and Rohde (1994) attribute it to the internal structure of Congress during that period. Deering (1988) attributes it to the growth of the standing army and navy after the war. Sundquist and Fisher also point to the precedent established by Truman in the Korean conflict. Similarly, the passage of the War

Powers Resolution in 1973 marked a change in presidential powers, one that most scholars agree unintentionally empowered the presidency by formally recognizing and authorizing the president’s right to deploy troops into hostile situations for up to 60 days (Fisher 2004, Meernik

1995).

There can be no question that both the War Powers Resolution and Congress’ complete acquiescence to Truman’s unilateral action initiating the Korean War were major incidents in the evolution in the balance of war powers, but it is unclear when that Congressional deference began. Perhaps the deference members of Congress showed at the outset of the Korean war merely reflected an already established understanding of the Constitution. Although I do not include the initiation of the Korean war in this dataset (because data collection proved too time

6 consuming—I certainly intend to include it in the future,) the work presented here, mostly focusing on the 19th century, can establish a baseline to which future work can compare the

Truman-era understanding of inherent commander in chief powers.

In addition to the hypothesis that interpretations of the president’s inherent powers shifted during World War II, and perhaps shifted again after the Vietnam War, Fisher also offers another

(implied) hypothesis: that the transfer of legitimate authority took place not in one historical moment, but rather with a gradual broadening of the idea of defensive war. Fisher details how over time, presidents began to use force unilaterally, justifying such actions as necessary to protect Americans and American interests. Such a power is not delegated to the president in

Article II, though it might be loosely derived from the Constitutional Convention debates over whether to phrase Congress’ power as to ―make war‖ or to ―declare war.‖ Raven-Hansen (1994) argues that although the courts have recognized the development of customary law, whereby the president has acquired the authority to deploy troops to defend and protect American civilians abroad, he argues that this limited defensive power was sometimes officially and often tacitly approved by Congress, and that prior to the twentieth century it was not seen to derive from any inherent constitutional presidential power. Though this paper focuses on declared wars only, and not on more minor uses of force, it hopes to begin to identify precisely when and why that shift from congressionally-authorized to inherent presidential powers took place, eventually leading to an integrated story about how presidential powers grew in both declared and undeclared wars.

There is a third, implied hypothesis that is most common in mainstream political science

(as opposed to historical or legal) treatments of the evolution in war powers. That hypothesis is that members of Congress are strongly predisposed to support actions taken by their own party’s president. Howell and Pevehouse (2007) found that Congress is more likely to act regarding the

7 use of force if it is governed by a large partisan majority, and if the potential troop deployment is expected to be long and discretionary. In their comprehensive investigation of post-WWII uses of force and potential uses of force, they identify variables, like partisanship and the inherent disadvantages that the collective action problem imposes on Congress, that help to explain the ease with which presidents have acted without congressional approval in the modern period.

Most research that investigates the effects of these institutional variables has been limited to the post-war era, so we do not know whether these phenomena might help to explain the evolution in war powers authority over time, especially if, as others hypothesize, the key changes in authority came before or at the very beginning of the post-WWII era. But these studies also suggest a hypothesis that may apply in the 19th and early 20th centuries as well. Perhaps the president’s partisan allies in Congress have always supported and merely echoed his assertions of unilateral authority, and the only thing that has changed over time is the willingness of presidents to claim more and more inherent constitutional authority. Only by examining arguments made by members of Congress, and by presidents, over time, can we test this hypothesis.

What can an analysis of members’ statements about congressional and presidential powers contribute to these debates? Ultimately, we want to be able to test competing theories about when, and in response to what specific stimuli, Congress began to recognize broad war powers inherent in the commander-in-chief clause of the Constitution. The first step in that theory-testing and theory-building enterprise is to find and document members’ statements about presidential powers during wartime. Perhaps members of Congress began to recognize broad inherent war powers all at once, perhaps after the Civil War. Or perhaps members of Congress have always been wholly reactive to presidential rhetoric and justifications, always echoing their statements. In that case we can attribute to changes in authority to the men who have occupied

8 that office. Or perhaps there hasn’t been any monotonic change in time after all, and in reality members’ arguments about presidential power change in partisan support and opposition to the president far more than they change over time.

Hypotheses

This paper is primarily descriptive, documenting for the first time the nature of members’ of Congress references to the commander-in-chief clause of the Constitution. At the same time it attempts to test a few simple hypotheses.

The first hypothesis is that there has actually been some change over time in members’ of

Congress understanding of their own, and the president’s, inherent war powers. Identifying the precise nature of any changes in members’ language regarding the powers conferred by the commander-in-chief clause, and the moments when those changes took place, is the main focus of the paper.

The second hypothesis that can be tested is that members of the president’s party argue for more expansive presidential war powers. There are good reasons to believe that partisans of the president would put their own interest in his success above abstract constitutional principles, and at any given moment in time argue that the commander in chief should have more discretion than his partisan opponents would concede.

Data

The analysis below is based on a dataset comprised of 511 instances in which a member of the House or Senate mentioned the ―commander-in-chief‖ clause of the Constitution during years in which a declared war was fought. The years included are 1812, 1813, 1814, 1815, 1846,

1847, 1848, 1898, and two months of 1917. I had hoped to include the entire periods from 1917-

1921 and 1941-1945, but the number of mentions of the commander-in-chief during the first ten weeks of World War I exceeded the number of all previous mentions, and there simply was not time to analyze all of the relevant statements in the rest of the war. They will be added as the paper is revised.

References were located by searching electronically for the terms ―commander‖ and

―chief‖ in the digital library HeinOnline, which searches optically scanned versions of the debates of Congress. The search engine identifies any mentions of either word on a day when both words appear in debate. Therefore, many mentions are located that refer to the ―chief clerk‖ or ―chief engineer‖ or ―chief executive‖ or ―chief magistrate,‖ and many mentions are located that refer to ―lieutenant Commander‖ or a naval ―Commander in Chief.‖ These references were discarded, and only references to the president of the United States are analyzed and reported here.

This search method does give rise to sources of error. Given the age of many of the pages of original text, there are errors in the optical scan and search functions, (so that ―commander‖ is spelled ―comfander‖ or some such). The benefit of searching for both terms (―commander‖ and

―chief‖) is that as long as both appear somewhere in a day’s debate and one of the two words in the phrase is spelled correctly, the mention shows up as a ―hit‖ and can be identified correctly by

10 human eyes. The drawback is that there may be some mentions of ―commander-in-chief‖ that are buried in illegible pages of congressional debates that do not show up here. It is unlikely that these ―misses‖ are correlated with a particular type of reference to inherent presidential or congressional power, so there probably is not a systematic bias in the types of references that are presented below, although the raw number of mentions might be underestimated.

I collect and analyze each mention separately, even if it is in the context of the same speech by the same member of Congress. Even though a member is likely to invoke the phrase

―commander-in-chief‖ with roughly the same meaning each time in the same speech (indeed, one would imagine a member would be consistent across many speeches!), the meanings might (and do) differ slightly—one time merely quoting the Constitution, one time referring to Congress’ duties relative to the president’s, and another time referring to the president’s duties alone.2

Table 1 presents the number of mentions of ―commander-in-chief‖ by war. Row 1 lists the number of pages on which either the word ―commander‖ or the word ―chief‖ are returned by the search engine. In each war, the vast majority of references to these words are to other kinds of commanders or chiefs, and not to the president. The most striking finding in the table is how the raw number and yearly averages of references to the president as ―commander-in-chief‖ increase over time, and increase especially profoundly between the Spanish-American War and

World War I. As will be noted below, the content of those references also changes during that period.

The other striking feature of Table 1 is that in all of the war of 1812, the search only returns 25 references to the president as ―commander-in-chief.‖ There are so few references to the commander-in-chief during the War of 1812 that readers might be skeptical about the validity of the search. However, the content of those references is consistent with that small number.

Eight of the 25 references debate whether the president, as commander-in-chief of the state militias, really has full control over them. Some question whether he can issue orders to them at all, or whether he must instead make requests for their service to the state governors. Others debate whether he can send them abroad (into Canada) given that the Constitution says that

Congress may (only?) call upon the militias ―to execute the laws of the union, to suppress insurrections and to repel invasions‖ (Article I, section 8). Three more either criticize the administration or question whether the Administration is the appropriate actor to investigate the poor performance of the armed forces during the war. Three more references simply note that he issues orders to the military. Three references simply quote the Constitution, with no other discernible implication. Two refer to Madison’s evacuation from Washington. Members’ of

Congress published remarks about the War of 1812 do not focus on the president or his powers, except to question his authority over the militias. Although the number of references to the commander-in-chief is small, given the content of those remarks, it seems unlikely that the search procedure is missing a great number of references with a significantly different character.

Each of the 511 references to ―commander-in-chief‖ in this dataset were made in a particular context, and even similar references may have slightly different implications for presidential power. Nevertheless, I employ two types of analysis below to identify change and continuity in this rich historical record. First, I identify the subject of each member’s comments and group them with others that were made about very similar subjects. I then compare the three most common types of comments in each war. Second, I create a subset of references that deal with the powers inherent in the commander-in-chief clause or shared with Congress, and code them for whether the speaker conceives of the commander-in-chief’s powers broadly or

12 narrowly. I then track the balance of broad vs. narrow comments over time and by the partisanship of the speaker.

Content of the references to the commander-in-chief

For each war, I identify the issues that were most commonly mentioned by a member of

Congress when they referred to the commander-in-chief. Many statements were not similar enough to others to categorize together. Table 2 lists the largest groups of easily categorized statements by war. The following section elaborates briefly on the most common types of statements made during each war.

As previously discussed, the major debate during the War of 1812 was the scope of the commander-in-chief’s authority over state militias, with 6 of 8 comments arguing that the commander-in-chief had lesser authority over them than state governors. This debate over the commander-in-chief’s power was a subset of a larger debate during the war over whether

Congress and the federal government had the authority to train the militias, and whether they could be called into service for an offensive war rather than for defensive purposes only. The

Congress was grappling mostly with questions of federalism, and questions of executive power came up in that context. Other references to the commander in chief were incidental, and do not feature any common theme.

The Mexican War featured a much more engaged debate over presidential war powers. A third of the comments that mentioned the commander-in-chief dealt with the scope of his wartime powers. Given the controversy over the circumstances that led to the war, many members felt the need to describe their understanding of the Constitution. The most expansive readings of the commander-in-chief clause came from Democrats (supporters of Polk), who

13 argued that the commander in chief was justified in pre-emptively beginning the war to protect

Texas from invasion3, and that once war is declared, Congress’ power over the commander-in- chief’s prosecution of the war ends.4 These positions, though, were vigorously opposed by those who argued the opposite extreme—that the commander-in-chief has no power that would not be held by an ordinary general5, that he derives all of his power from Congress6, that he has no authority to initiate hostilities or to decide whether the objects of the war have been achieved.7

These arguments for superior Congressional power were echoed by several members of the president’s own party.8

A second question vigorously debated during the Mexican-American War is whether the commander-in-chief has unilateral power to set up civil administration in conquered territory. As the debate evolves, there is almost universal agreement that he cannot annex territory, but only hold it for Congress to dispose of. A consensus also emerges that because he is subject to international law, as recognized by acts of Congress, he is required to maintain order in conquered territory.9 There also emerges a consensus that his administration of conquered territory could be regulated by Congress.10 There is, however, a great deal of partisan skepticism over whether Polk’s actual creation of military-civil administrative positions, held by military officers, was merely maintaining law and order, or whether it was the creation of new law.11

Partisan opponents of Polk also attack him for raising money in conquered territory, and there is debate over whether that is merely taking supplies as conquering armies have a right to do, or whether that is imposing taxes, which some argue only Congress could do.12 Members of

Congress in the president’s party are careful to argue that Polk’s actions are legal, and justified by the laws of war and acts passed by Congress. Rep. Seddon, a Democrat, for example, argued the following:

We have seen that the power-at once a right and a duty of a conqueror-to establish provisional civil governments, results from the high military functions of defending his army and its conquest, and the obligation of exercising the authority with which, from having superseded by fore the existing civil polity of the conquered province, he must of necessity be for the time invested, in the greatest practicable conformity with justice and humanity towards the subject people. The power, therefore, of establishing provisional temporary governments over the conquered provinces of Mexico; of personally, or through his command-ers, making all essential modifications and changes in the existing institutions of the conquered people, and of taking all the steps requisite and proper to maintain order, protect the people, and administer justice, clearly appertained to the commission and functions of a generalissimo, and might be, as it probably has been, exercised by the President in his capacity as commander-in-chief under the Constitution. But his powers in that capacity over these conquered provinces of Mexico might have been at any time heretofore limited or more clearly defined by the legislation of Congress, as the sub-ject of his past action may even now be controlled or regulated by further enactments. 29th Congress 2nd Session Cong. Globe 25 (1847)

A third group of comments during the Mexican-American war fall into the general category of members’ of Congress attitudes toward the authority of the commander-in-chief. A handful of these argue that members of Congress should stand by and refrain from criticizing the commander-in-chief.13 One member who did not approve of the war argued that he still felt compelled to vote for supplies for the troops.14 However, the majority of references in this category loudly (and sometimes sarcastically) argue that the commander-in-chief is not above criticism, and that Congress should not defer to him or abdicate its own responsibility for deliberation. For example, Senator Corwin (Whig), said:

I trust, Mr. President, that our master will be appeased by the facility with which, immediately after that rebuke of, his minion, the Senate acted upon the bill, and gave him the army which he required. I trust that he will now forget that law which, as commander-in-chief of the army of the United States and President of this great North American Republic for the time being, he promulgated to us in the message, and those commands which lie was pleased to deliver at the opening of this session to his faithful and humble servitors in both branches of the American Congress, admonishing us that we would be considered as giving "aid and comfort" to his enemy-not ours !-his- if one word should be said unfavorable

to the motives which have brought the royal will to the conclusion that he would precipitate this Republic into a war with Mexico!

29th Congress 2nd Session Cong. Globe 212 (1847) Appendix to the Congressional Globe

The vehemence of these arguments indicate that there was a broader rally effect around the president to which the speakers were responding, though it does not show up prominently in this dataset. They also indicate that there was significant (largely but not exclusively partisan) resistance to the idea that the commander-in-chief was infallible or was deserving of

Congressional acquiescence on all subjects.

The Spanish-American war again featured debate over the degree of deference members of Congress should show the commander-in-chief. This was the most common type of reference to the commander-in-chief during that war. Almost all of the references in the ―attitude‖ category speak about bipartisan unity and support for the president.15

In contrast to these calls for support for the commander in chief, the Spanish-American

War also features a series of statements that argue in favor of declaring war while stating that the commander-in-chief should not be granted the authority he requested to ―intervene‖ between the

Cuban rebels and Spanish government in Cuba.

For example,

Mr. President, this is not a monarchy, where the king can use the army and navy to make war or to "intervene" whenever and wherever he desires to do so. Sen. Pettus (D), 31 Cong. Rec. 3730 (1898)

The third most common type of reference during the Spanish-American war debated whether the commander-in-chief has the power to unilaterally take over Hawaii. While considering whether Congress should annex the territory, some argued that the commander-in- chief could take the territory anyway, as a military necessity, so that American vessels going to

16 the Philippines could stock up on coal.16 Others argued that Congress needed to act precisely because it would be illegal for the commander-in-chief to take over territory that was not a belligerent in the conflict he was trying to win.17

By the time World War I comes, the character of the discussion changes dramatically.

The identification of the commander in chief with national unity that began during the Spanish-

American War is taken to a new level. The largest group of references to the commander-in-chief during the first few months of World War I argues that Congress should empower the commander in chief to censor the press, control the food supply, regulate the economy, or control the railroads. They invoke various reasons (and sometimes no reasons at all besides the commander-in-chief title) in order to argue for these largely domestic expansions of executive power. This argument implies that the president is inherently trustworthy:

The President Is the great Commander in Chief. He is to carry the war, if possible, to a successful conclusion. He, under this amendment, is to make and fomulate- and, of course, he will do it in connection with the press-certain rules and regulations as to what shall or shall not be published-not to publish such matter as is calculated to injure the United States. Does the Senator think that any President of the United States would formulate a rule which would prevent legitimate criticism? Sen. Overman, Dem., 55 Cong. Rec. 779 (1917)

This argument in favor of passage of the Espionage Act straddles a line between arguing for a piece of legislation and arguing that it is not even necessary, as the commander-in-chief has virtually dictatorial powers already:

We have to confess that it is war, that it is really war, and that the authority of the Commander in Chief extends to every foot of territory of these United States in order to use his power even on mere suspicion to hold-every man and to prevent every act, not to punish it-how are you going to punish a newspaper by a jury trial, whoever did it?- but to prevent every act by a newspaper or anyone else which will give information to the enemy. Rep. Parker, Republican, 55 Cong. Rec. 1703 (1917)

The second largest category of mentions of the commander-in-chief clause are arguments that Congress should defer to the wishes of the commander-in-chief generally or on specific pieces of legislation to raise and spend money, censor the press, control the food supply, or control the railroads. They differ from the first category in that those argued that Congress should empower the president, and this group argues that Congress should defer to the president’s judgment. Literally dozens of statements like the following made by Republican Rep.

Treadway appear in the Record: ―I shall vote for this amendment because it is the principle which the Commander in Chief of the Army today urgently requests‖ (55 Cong. Rec. 1195

(1917)).

The third most common reference is a particularly large subset of the same arguments about congressional deference: explicit statements that Congress should defer to the wishes of the commander-in-chief as it passes legislation to raise an army (a constitutional power of

Congress). One example:

You and I are responsible for supporting the President as Commander in Chief of the Army. He says to us that he can more adequately and effectively carry on the great responsibilities of this war with selective conscription than by the old and vicious volunteer system of chance, and I trust we will stand by him on that proposition. Rep. Lunn, Dem., 55 Cong. Rec. 973 (1917)

Another common type of statement about the commander-in-chief that emerges during

World War I is equating the commander-in-chief with the flag18 (2 mentions) or members of

Congress exhorting their fellows to be ―loyal‖ to the commander in chief (9 mentions).19 This idea of loyalty to the commander in chief emanated from both partisan opponents of the president and opponents of the war. As Rep. Dill (D) put it:

When I have done that I shall have exhausted every power at my command to keep this country out of war, and thereafter I shall be loyal to the Commander in Chief of the Army and the Navy, the President of the United States. 55 Cong. Rec. 344 (1917) Thursday, April 5, 1917

What can we learn from these descriptions? One observation is that over time, questions about the commander-in-chief’s powers evolved from questions about his authority to issue certain types of military orders (to direct the militias in the War of 1812, to act pre-emptively to protect the border at the outset of the Mexican-American War), to questions about his wartime authority over domestic and economic issues. Significant numbers of members of Congress argued in both the Mexican-American and Spanish-American wars that the commander-in-chief clause does not empower the president to initiate hostilities. Compared to modern sentiments, this would seem to support most mainstream historical treatments of war powers that point to change over time rather than static interpretations.

In addition, over time the voices that at one time loudly questioned and criticized the commander-in-chief were drowned out by a growing norm that the existence of a declared war means that the Congress should defer to the commander-in-chief’s judgment on a wide range of topics, and that criticizing him was unpatriotic. In addition, then, to changes over time in the actual powers associated with the commander-in-chief role, there was a change in attitude that correlated with, and perhaps contributed to, Congress’ willingness to empower him further.

Breadth of the Commander-in-Chief’s Power

In a second analysis, not focusing on the subject of the member’s speech, but rather the implications for presidential and congressional power, I divide all 511 mentions into three groups. I collected each sentence in which the member of Congress mentioned the president in

19 his capacity as ―commander-in-chief‖ and coded the meaning of that sentence (or that sentence in combination with the adjoining one, if it was necessary to give the reference any meaning) into one of three categories. Given that the phrase ―commander-in-chief‖ implies at the bare minimum civilian control over the military, and that control is generally non-controversial, the first category includes references to the fact that the commander-in-chief supervises troops, sailors, and generals, and gives orders to them about where to go.20 The second category encompasses references to the commander in chief that do not relate to the powers of the office at all. Most were statements about attitude—whether it is okay to criticize the commander in chief, or whether he should have moral or social authority over the public.21

The third category of reference content is whether the speaker used the commander-in- chief clause to refer to the president’s (non-command-related) inherent powers or to the president’s powers relative to Congress. This category includes statements that argue for congressional deference to the president, as well as statements about the balance of powers. Here are four examples of statements in this category:

"'Has not the President the right, in respect to the diplomatic correspondence and other matters in the lands of the State Department, to prohibit the information being made public? Certainly he has. When our country is engaged in war the President of the United States as Commander in Chief of the Army and Navy has exactly the same power in respect to the military and naval secrets of the Government that the President has in respect to diplomatic affairs.‖ Senator Nelson, 55 Cong. Rec. 838 (1917)

―If you mean to say, that after the country is conquered, the commander-in-chief may levy either taxes or contributions, I deny the doctrine altogether.‖ Senator Calhoun, 30th Congress 1st Session Cong. Globe 497 (1848)

―Congress had a right to give directions as to the end and purposes of the war; and, according to his humble judgment, it was the duty of the President to yield a respectful attention to the advice of Congress, and to govern himself as commander-in-chief of the army at the direction of Congress.‖ Senator Badger, 29th Congress 2nd Session Cong. Globe 430 (1847)

―Giving the President authority, as we do by this bill, and placing him in funds to sustain the honor of our Nation as Commander in Chief of the Army and Navy, we must trust the President. It is the one way now, no matter what the sacrifice, to quickly end the war.‖ Rep. Moore, 55 Cong. Rec. 648-9 (1917)

These four statements all relate to the balance of powers between the president and

Congress, but each implies that the commander-in-chief clause has a different meaning: that the clause grants the inherent power to restrict information regarding the war; that it does not grant the inherent power to make law in conquered territory; that the clause does not grant him total control over the end of a declared war; that it grants him significant authority over the prosecution of a declared war to which Congress should defer.

Table 3 shows the number of references in each category, by war. It shows that the War of 1812 was, again, qualitatively different in that there were few references to the commander in chief clause at all, and few that dealt with the balance of powers specifically. The most theoretically interesting category is the one in which members of Congress refer to the balance of powers or the inherent powers of the commander in chief. In order to help analyze the change over time in the balance of powers between the commander-in-chief and Congress, I coded each statement in this balance of powers category for whether or not the members used the phrase

―commander-in-chief‖ in the process of arguing for contextually broad presidential power. I say contextually broad, because for a member to argue in 1812 that the commander in chief had the authority to send the state militias abroad was a controversial statement, and one that implied broad presidential authority, whereas for a member to make the same argument in 1917 could have been, in context, a claim for limited presidential authority (as in ―he can order the army and militia abroad, but should not be allowed to regulate the food supply‖). Table 4 lists examples of broad and narrow statements for each war.

Of all 377 statements in the ―balance of powers‖ category, 248 (66%) either imply or argue for contextually broad presidential power. But that proportion is driven entirely by the overwhelming number of statements relating to the balance of power made in favor of broad presidential power during World War I. Table 5 shows that a small majority of the statements during the War of 1812, the Mexican War, and the Spanish-American War were arguing for narrow constructions of presidential powers deriving from the commander-in-chief clause. That proportion reverses itself and turns into lopsided support for broad presidential power during the first few months of World War I. Figure 1 shows this graphically. Caution should be taken in assuming that support for broad presidential authority during the first two months of the war would extend to the entire war, and it may be the case that as more references are added to the dataset, more of them will argue for narrow powers deriving from the commander in chief clause. But as noted in the previous discussion, something does appear to change in how members of Congress see the presidency between the turn of the century and World War I.

Effects of Partisanship

A second exploratory question that can be answered with these data is whether and to what extent the partisanship of the speaker is related to the way in which he uses the commander in chief clause. One obvious hypothesis to test is whether members of the president’s party are more likely to broadly construe the powers of the commander in chief. Not surprisingly, the majority of speakers in the president’s party, in every war, construe the commander in chief’s powers broadly when they refer to them. Of 199 statements made by partisan supporters of the president regarding the balance of powers, 153 (62%) construe his powers broadly. Similarly, partisan opponents tend to argue for narrow constructions of presidential power. Of 178

22 statements made by the president’s partisan opponents regarding the balance of powers, 83

(64%) construe the powers associated with the commander in chief clause narrowly.

This pattern of presidential-partisan support for broad commander-in-chief powers holds true in each conflict, as seen in Table 6 and Figure 2. There is a significant difference, however, in how partisan opponents of the president construe the commander-in-chief’s powers during

World War I, as compared to the 19th century conflicts. In the earlier wars, the vast majority of references to the commander-in-chief made by partisan opponents of the president construed his powers narrowly. But during the first two months of World War I, partisan opponents of the president referred to broad commander-in-chief powers in the same proportion as partisan supporters of the president.

Discussion

This paper certainly does not (and does not purport to) give a full picture of the development of the war powers of the president. Substantively, the president’s war powers are affected by court cases and by legislation, which are excluded from this picture. However, those court cases and legislation arise out of a context of a prevailing opinion, and this paper does provide some important information about that context. It shows that members of Congress as far back as the 1840s grappled with the dilemma of whether to supply the commander in chief with the means to fight a war that they personally opposed. It shows that calls for deference to, and even reverence of, the commander in chief were minority opinions in the nineteenth century, though those voices were growing louder as the commander-in-chief became tied rhetorically to nationalist sentiment during the Spanish-American War.

This analysis also highlights the dramatic growth in those deferential and reverential sentiments, among both partisan supporters and opponents of the president, at the outset of

World War I. Something changed about the way members of Congress in both parties interpreted their own and the president’s constitutional war powers in the first two decades of the twentieth century. Was it the rise of nationalism (as indicated by the references that conflate the commander-in-chief and the flag)? Or the rise of professionalism and expertise at the turn of the century? (Many of the statements in which members argue that Congress should defer to the commander-in-chief in the raising of armies actually mention ―the commander in chief and his military experts.‖) Or the legacy of the public, rhetorical presidencies of Roosevelt and Wilson?

At the very least, this analysis has identified change in a dependent variable that needs explanation.

Indeed, this analysis raises as many questions as it answers. Does the commander-in- chief continue to command rhetorical deference from members of Congress throughout World

War I? Do the quality of the references to the commander-in-chief change at all during World

War II? What happens during the intervening (―isolationist‖) years? How did members of

Congress refer to President Lincoln during the Civil War? How do they refer to the powers of the commander in chief during the undeclared wars of the nineteenth century, and especially during the years between the Spanish-American War and World War I? How did presidents refer to their role as commander-in-chief over time, and how does that relate to members’ statements?

Do members of the president’s party get their interpretations of the commander-in-chief clause straight from the presidents themselves? As this project unfolds, hopefully the collection of additional references will lead to some interesting answers to these important questions.

Works Cited

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Gibbons, William Conrad. 1987. ―The Origins of the War Power of the Constitution,‖ in Congress and United States Foreign Policy: Controlling the Use of Force in the Nuclear Age, ed. Michael Barnhart. (Albany, NY: State University of New York Press).

Grimmett, Richard F. Instances of Use of United States Armed Forces Abroad 1798- 2008. Congressional Research Service. Pdf accessed June, 2009.

Howell, William G. and Jon C. Pevehouse. 2007. While Dangers Gather: Congressional Checks on Presidential War Powers (Princeton: Princeton University Press).

Laurance, Edward J. 1976. “The Changing Role of Congress in Defense Policy- Making,‖The Journal of Conflict Resolution, Vol. 20, No. 2 (Jun.), pp. 213-253

Meernik, James. 1995. ―Congress, the President, and the Commitment of the U. S. Military‖Legislative Studies Quarterly, Vol. 20, No. 3 (Aug.), pp. 377-392

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Rohde, David. 1994. ―Presidential Support in the House of Representatives,‖ in Paul E. Peterson, The Presdient, the Congress and the Making of Foreign Policy. (Norman, OK: University of Oklahoma Press.

Rossiter, Clinton. 1951. The Supreme Court and the Commander in Chief. Ithaca: Cornell University Press.

Silverstein, Gordon. 1994. ―Judicial Enhancement of Executive Power‖ in Paul E. Peterson, ed., The President, the Congress, and the Making of Foreign Policy. (Norman: University of Oklahoma Press), 23:48.

Stern, Gary M. and Morton H. Halperin. 1994. The U.S. Constitution and the Power to Go to War (Westport, CT: Greenwood Press).

Sundquist, James L. 1981. The Decline and Resurgence of Congress (Washington: Brookings Institution).

Thomas, Ann Van Wynen and A.J. Thomas, Jr. 1982. The War Making Powers of the President. (Dallas: SMU Press).

Wormuth, Francis D. and Edwin B. Firmage. 1986. To Chain the Dog of War. Dallas, TX: Southern Methodist University Press.

Yoo, John C. 1996. ―The Continuation of Politics by Other Means: The Original Understanding of War Powers,‖ 84 Cal L. Review 167, 174.

2002. ―War and the Constitutional Text,‖ 69 Uni. Of Chicago Law Review 4, 1639-84.

Table 1. Number of mentions of ―commander-in-chief‖ by war

War of 1812 Mexican- Spanish- World War I American War American War (abbreviated)

Years included 1812, 1813, 1814, 1846, 1847, 1848 1898 1917 1815 (April 5-June 18)

Number of pages 617 1161 1355 741 where ―commander‖ OR ―chief‖ appears

Number of references 25 145 64 277 to the president as ―commander-in- chief‖

Average number of 6.25 48.3 64 277+ references to ―commander-in- chief‖ per year

Source: For the War of 1812, The Annals of the United States Congress, For the Mexican-American War, The Congressional Globe, For the Spanish-American War and World War I, The Congressional Record. Searched through Heinonline, available through the University of San Diego library.

Table 2. Modal topics, by war War Most Commonly Discussed Topics Number of mentions War of 1812 1. Scope of the commander-in-chief’s authority over 8 state militias 2. Simple quotes of Constitution 3 3. Simple references to command of troops 3 4. Can the commander-in-chief lead an inquiry into the 3 war’s failings?

Mexican- 1. Scope of commander-in-chief’s power (general) 59 American War 2. Scope of commander-in-chief’s administrative power 27 over conquered Mexican territory 3. Congress’ attitude toward the commander-in-chief 21

Spanish-American 1. Congress’ attitude toward the commander-in-chief 14 War 2. Scope of the commander-in-chief’s power in initiating 8 a war 3. Can the commander-in-chief unilaterally take over a 6 non-belligerent nation (Hawaii) to help win a war

World War I 1. Congress should empower the commander in chief (to 49 fight the war, control the food supply, regulate the press) 2. Congress should be deferential to the commander-in- 36 chief (general) 3. Congress should defer to the commander-in-chief 35 specifically in the raising of armies

Table 3: References to commander-in-chief, by category Mexican- Spanish- War of 1812 World War I American War American War Number of references to commander-in-chief in his capacity as military 4 23 4 17 commander (16%) (16%) (6%) (6%) (% of total)

Number of references to 11 108 45 213 balance of power/other inherent powers (44%) (75%) (70%) (77%) (% of total)

10 13 15 47 Other types of references (% of total) (40%) (9%) (23%) (17%)

Total number of 25 145 64 277 references to commander- in-chief Source: For the War of 1812, The Annals of the United States Congress, For the Mexican-American War, The Congressional Globe, For the Spanish-American War and World War I, The Congressional Record. Searched through Heinonline, available through the University of San Diego library.

Table 4. Examples of broad and narrow constructions of commander-in-chief power, by war Narrow Constructions Broad Constructions War of 1812 As proof of this, he read that clause in the Again, the Constitution says: "The President shall Constitution which says, ―the President shall be be Commander-in-Chief of the Army and Navy of commander in chief of the army and navy of the the United States, and of the militia of the several United States and of the militia of the several States, when called into the actual service of the States when called into the actual service of the United States?." What service? The service is United States.‖ Thus, said he, the militia are by spoken of generally, and means, no doubt, any the Constitution emphatically recognized as the service to which physical force is applicable. If militia of the several states. Mr. Bigelow, 23 intended only to apply to the three cases above Annals of Cong. 781-782 (1811-1812) specified, why were they not enumerated, instead of speaking of the service generally?—Rep. Clay, 23 Annals of Cong. 743-744 (1811-1812)

Mexican- The President had no more right to send an army But whether we may choose to act now or not, it is into Texas, before it became a State of the Union, clear, (is it not?) that in the absence of precedent American War than he had into Canada, Cuba, or any other legislation regulating the powers of the President friendly country. He knew that, as commander-in- as commander-in-chief, he has not, in the chief of the army, he had the right to dispose of it establishment of provisional governments over the as he deemed the safety and- interests of the conquered provinces of Mexico, exceeded, but country should require; but in the exercise of this only discharged his clear functions.—Rep. power he was limited, in time of peace at least, to Seddon, 29th Congress 2nd Session Cong. Globe the bounds of the Union.—Mr. McIlvaine, 29th 25 (1847) Congress 1st Session Appendix Cong. Globe 579 (1846)

Spanish- And it is the duty of the President, as Commander Mr. President, the marine hospitals are under the in Chief, to carry on the war as Congress has jurisdiction of the United States. It is a branch of American War declared it, and not otherwise.—Sen. Pettus, 31 the service under the control, for the time being, Cong. Rec. 3730 (1898) or regularly, of the Secretary of the Treasury; but the Commander in Chief of the Army and the Navy of the United States, if you please, the President, may, in time of war, use these marine hospitals for any purpose he pleases-for barracks, for hospitals, for quarters of any kind-or he may direct every one of them to be torn down and utterly annihilated. What is the use, therefore, of legislating that he may do this when no one questions his right?—Sen. Carter, 31 Cong. Rec. 4021 (1898)

World War I Whenever you set up this precedent of giving over It all ought to be vested in one person, because the to the President the control of anything outside of line of division between his authority as the control of the safety of the country you are Commander in Chief of the Army and the doing a dangerous thing. It has always been authority vested in Congress to make rules and recognized as a fact that the President regulations for the government of the Army and must be the Commander In Chief of the Army, Navy has not been defined in the Constitution, and but when it comes to the control of the food therefore it might be difficult to say where the line supplies of the United States, and things of that of division lies.—Rep. Steele, 55 Cong. Rec. 1712 kind, it seems to me that, inasmuch as he must (1917) give into the hands of subordinates the absolute control of this proposition, because he can not personally see to all of these different things— Rep. Moore, 55 Cong. Rec. 2995 (1917)

Table 5: Speaker’s broad or narrow construction of the commander-in-chief’s powers Mexican- Spanish- War of 1812 World War I American War American War

Number (%) of references with narrow construction 6 (54%) 64 (60%) 27 (60%) 32 (15%) of commander-in-chief powers Number (%) of references with broad construction of 5 (45%) 44 (40%) 18 (40%) 181 (85%) commander in chief powers

Total number of references to balance of 11 108 45 213 powers Source: For the War of 1812, The Annals of the United States Congress, For the Mexican-American War, The Congressional Globe, For the Spanish-American War and World War I, The Congressional Record. Searched through Heinonline, available through the University of San Diego library.

Table 6. Partisan support for broad construction of commander-in-chief power, by war Mexican- Spanish- War of 1812 World War I American War American War Presidential Partisans

Number (%) of narrow 0 (0%) 22 (39%) 5 (33%) 19 (15%) constructions

Number (%) of broad 2 (100%) 34 (61%) 10 (67%) 107 (85%) constructions

Total number of 2 56 15 126 statements made by presidential partisans

Partisan Opponents of the President

Number (%) of narrow 6 (66%) 42 (81%) 22 (73%) 13 (15%) constructions

Number (%) of broad 3 (33%) 10 (19%) 9 (27%) 74 (85%) constructions

Total number of 9 52 30 87 statements made by partisan opponents

Figure 1. Number of Broad and Narrow Constructions of Commander-in-Chief powers, in statements regarding the balance of powers

Figure 2. Constructions of the Commander in Chief clause, (raw numbers) by member’s party

1 This paper is a revision of a ―The Evolution of Presidential Authority in War Powers‖, presented at the Western Political Science Association Annual Meeting in April 2010 in San Francisco. That paper was co-authored by Kim Thoren. The author would like to thank Kim Thoren, Nancy Kassop, and other panel discussants for help and helpful advice on this project. 2 205 members of Congress made the 511 references to the commander in chief. 108 of them only made one reference. 64 made two or three references. Only four made more than ten references. Two of these, one in favor of a strong commander in chief (Rep. Husting, during World War I), and one strongly opposed to a powerful commander in chief (Rep. Garrett Davis, during the Mexican-American War), made more than 20 references each. 3 For example, ―The President can know no other boundary; and in ordering the army, therefore, to the Rio Grande, he did what he had a right to do as its commander-in-chief-what he was bound to do as President of the Republic. … If Mexico was in arms, and in hostile attitude, it did not become a prudent Executive to wait until the country was invaded before he used the means given him by the nation for its defense.‖—Rep. Yancey, Dem., 29th Congress 1st Session Appendix Cong. Globe 951 (1846) Appendix to the Congressional Globe 4 For example, ―Congress, then, has only the power to declare war, to authorize it, and furnish supplies for conducting it. The President, as commander-in- chief of the army, supported by fresh supplies, is to exercise his discretion in prosecuting this war, according to the constitutional powers vested in him, according to the established usages of nations, and the principles of international law.‖—Rep. Dromgoole, Dem., 29th Congress 2nd Session Cong. Globe 489 (1847) Thursday, February 25, 1847. 5 For example, ―Congress-having declared war, and authorized armies and navies to be raised, the President, by force of the Constitution, becomes the "commander- in-chief," the generalissimo of those armies and navies; he ceases to act as President under authority of the Constitution, and assumes his new position of commander-in-chief, and acts under the authority of the laws of Congress, just as any other officer or soldier engaged in the war, and is at all times under the control of Congress.‖ Rep. Tibbatts, Dem., 29th Congress 2nd Session Cong. Globe 166 (1847) Appendix to the Congressional Globe 6 For example, ―The Constitution explicitly vests the whole war power of the Government in Congress; and it makes the President commander-in-chief of the army and-navy of the United States.‖ Rep. Davis, Whig, 29th Congress 2nd Session Cong. Globe 519 (1847) Monday, March 1, 1847. 7 For example, ―He held, with the Senator from Georgia, that Congress had a right to control every operation of this war-not to direct the army in the field, but, as the war-making power of the Government was vested in Congress, Congress had a constitutional right to declare with whom we should bent war, and for what, and to determine when the objects of the war lied been accomplished. Congress had a right to say to the President of the United States, The purposes for which we authorized this war are accomplished; there is no need of prosecuting an offensive' war any further.‖ –Sen. Badger, Whig, 29th Congress 2nd Session Cong. Globe 430 (1847), Wednesday, February 17, 1847 8 For example, ―I do not deny that Congress may at any time instruct the President as to the management of the war- may enlarge or restrict his powers.‖ Democratic Senator Johnson of Georgia, 30th Congress 1st Session Appendix Cong. Globe 379 (1848). Appendix to the Congressional Globe. 9 For example, ―What were his duties as commander- in-chief? … In the first place, to execute the war, to fight the enemy, to invade his territories. But, besides this, he had other duties to perform- duties which this nation as nation, owed; they were the duties of Congress, which we, the representatives of the American people, owed to the peaceful citizens of a country with which we were at war, and which we had invaded.‖ Rep. Woodward (D), 29th Congress 2nd Session Cong. Globe 27 (1847) Wednesday, December 16, 1846. 10 For example, ―It is true the President must exercise the functions in question in subordination to Congress. The Constitution vests it with the power "to make rules concerning captures on land or water;" ―to make rules for the government and regulation of the land and naval forces," and also confers upon it exclusively the power of making all laws which shall be necessary and proper to carry into effect the granted powers. And it has undoubtedly the authority, either before a declaration of war, at the time of the declaration, or at any time afterwards, if it distrusts the wisdom or prudence of the commander-in-chief, to prescribe the forms of civil government in the event of conquests by our arms, which shall be established by our commanders; or it may make any other regulations pertaining to war which it may see fit.‖—Rep. Bayly (D), 29th Congress 2nd Session Cong. Globe 99 (1847) Appendix to the Congressional Globe. 11 For example, ―Compare James K. Polk with Napoleon Bonaparte!... So our commander-in-chief, bedizzened by his sudden elevation, struts forth upon a somewhat less magnificent theatre, but with hardly less magniloquent tones of command, and sends abroad his generals and his commodores, his Satraps and his Tetrarchs, not to meet and van

quish the enemy in battle, but to conquer whole states and provinces by proclamation! "The war is not waged with any view to conquest;" oh, no! and yet new territorial governments are organized, new laws are ordained, and new magistrates are appointed over these new and extensive acquisi tions; and appropriations of the public money are called for to erect fortifications, in order to secure the permanent possession of the conquered regions.‖ Rep. Foot, Whig, 29th Congress 2nd Session Cong. Globe 337 (1847) Appendix to the Congressional Globe 12 For example, ―But it may be said that the President is commander-in-chief of the army in Mexico, and that it is an essential part of the power of the commander-in-chief to impose a system of taxation in the enemy's country…But if it is the case-if the President can exercise in Mexico a power expressly given to Congress, which he cannot exercise in the United States-I would ask where is the limit to his power in Mexico? Has he also the power of making appropriations of money collected in Mexico, without the sanction of Congress? This he has already done. Has he the power to apply the money to -whatever purpose he may think proper, and among others to raise a military force in Mexico without the sanction of Congress? That, also, he has already done. But if there be no limitation, then his powers are absolute and despotic in Mexico, and he stands in the two-fold character of the constitutional President of the United States and the absolute and despotic ruler of Mexico. To what must this conclusion lead?‖ Senator Calhoun, Whig, 30th Congress 1st Session Cong. Globe 479 (1848) Saturday, March 18, 1848 13 For example, ―Show him the man who loudly professed patriotism, while at the same time he stood and proclaimed to the enemies of the country that the Executive, the Commander-in-Chief of the military and naval forces of the country, is an aggressor, and he would show you a man as much a traitor at heart as that man who commits an overt act of treason.‖—Rep. Chipman, Dem., 29th Congress 1st Session Cong. Globe 837 (1846) Friday, May 22, 1846 14 For example, ―The Constitution has made him commander-in- chief of our army and navy-the people having elected him President-and. he has ordered his fleets and forces to duties, where, by thousands, they are perishing from pestilence and the sword, or are cast away, ships and men, amid the stormy perils of an inhospitable shore. Sir, I would save these men, from the inevitable consequences of a refusal of supplies. I expect to vote for most, if not all, the supplies the President may call for ; not that I have the slightest confidence in the ability of the President, or those about him, to conduct the war wisely, on any plan, whether of offensive or defensive operations; nor yet that I desire to win, either by war or negotiation, one inch of territory from Mexico; but because he has been appointed by the people of this country to the chief command, and I am compelled either to abandon my countrymen to a terrible fate, or to save them by the only instrumentality at my command, viz., by furnishing him the means of recruiting and subsisting them.‖—Rep. Pendleton (Whig), 29th Congress 2nd Session Cong. Globe 410 (1847) Appendix to the Congressional Globe. 15 For example, ―Mr. Chairman, in this solemn, serious, and anxious moment the American in the White House should, as he does, command our unqualified sympathy, confidence, and approval. Divided as we may be politically, racially, or sectionally, at the water's edge we are one, and our unity is represented by that emblem; and our President and Commander-in-Chief-his policy shall be our policy, his settlement or action shall be ours also.‖— Mr. Skinner (D), 31 Cong. Rec. 3212 (1898) Thursday, March 24, 1898. Also: ―If there have been one or two discordant notes; if, as we stand on the threshold of war, which we have practically already crossed, there has been heard among the Senators in this Chamber a reflection upon the character and motives of him who is the beloved President of our whole people and whom the Constitution creates the Commander in Chief of our armies and our navies, it will only serve to emphasize and deepen the practical unanimity with which all good men look up to the President and the desire we all cherish in this awful crisis to strengthen his hand.‖ Sen. Stewart, Dem., 31 Cong. Rec. 3903, 3905 (1898) Friday, April 15, 1898 16 For example, ―By virtue of his office of Commander in Chief of the Army and Navy, if the President deems the seizure and holding of specific territory during a state of war to be necessary, he may so seize and hold it regardless of the legislative and judicial branches of the Government; but in such case he must act in a military capacity and by virtue of the military authority lodged in him by the Constitution. Such seizure is to be regarded as a military necessity, and the power to make it is implied from the power to make war.‖—Senator Allen, Dem., 31 Cong. Rec. 6635 (1898) Monday, July 3, 1898 17 For example, ―It will be noticed, taking the phraseology all together and reading the opinion in toto, that the point under consideration was as to the war power of the Executive; and it is of some significance, in connection with recent rumors as to a supposed stretch of authority that it was said the President intended to exert, and which I have no idea he ever did intend to exert, that he can not, as the Commander in Chief of the armies of the United States, seize territory and appropriate it to the use of this nation, and therefore, a fortiori, he may not absorb by his own will the soil the territory of a friendly power.‖—Sen. White, Dem., 31 Cong. Rec. 594 (1898) Appendix. 36

18 For example, ―We need one leader, and him the Commander in Chief of theArmy and Navy, and as God shall judge me, every patriot in this country ought, as lie will. to get uinder the flag of the-one leader, made so by the Constitution of the United States, the Commander in Chief of the Army and the Navy of this country.‖—Rep. Dies, Dem., 55 Cong. Rec. 3476 (1917) Monday, June 11, 1917. 19 For example, Senator Townsend, Republican, quotes a constituent letter: ―We, as representatives of the people of this county, do most earnestly affirm and declare that the citizens of Lenawee stand second to- none in their steadfast loyalty to their country and in their unswerving letermination to give united support to the President as Commander in Chief of our Armies and Navy and to Congress as it gives him every possible measure of aid and assistance in this supreme hour in the life of our Nation.‖ 55 Cong. Rec. 739 (1917) Tuesday, April 17, 1917. 20 Here are examples of two references that were coded into this category: ―With regard to this case also, the honorable Senator entirely overlooks the fact, that although Congress has the power to declare war, and therefore, as I conceive -though some gentlemen do not even admit that- as an incident to the power of declaring war, the right to declare the purpose for which the war is to be waged, yet it is conceded by all that as the President of the United States is, by the Constitution of the United States, commander-in-chief of the army of the United States, the actual direction of the army must be in his hands.‖ Senator Badger, 30th Congress 1st Session Cong. Globe 705 (1848). Also: ―Mr. President, an army to be efficient must be of one mind, and that mind the commander in chief's; otherwise it will not have morale and spirit. An army to be effective must be a machine.‖ Senator Frelinghuysen, 55 Cong. Rec. 1014 (1917) Monday, April 24, 1917. 21 Here are two examples of statements in this ―Other‖ category. ―While the commander in chief of our armies keeps himself aloof from the scenes of action, we find one officer after another issuing proclamation upon proclamation, calling for aid from their friends, and denouncing vengeance upon their foes.‖ Rep. Tallmadge, 25 Annals of Cong. 643-644 (1812-1813), November 2, 1812. Also: ―I do not see why the newspapers should not "take their medicine" in a great fight like this as well as other people. Why they should desire to publish information that the Commander In Chief of the Nation says is useful to the enemy is more than I can understand.‖ Rep. Webb, 55 Cong. Rec. 1714 (1917), Wednesday, May 2, 1917.