The war powers are founded in the war against Native peoples.

This view of the Constitution is also supported by early post-ratification history. Because scholars have viewed the Declare War Clause as granting Congress the sole authority to begin war, the United States' failure to wage a declared war until 1812 might be seen as something of a puzzle. Certainly the answer does not lay in the existence of an era of good international feelings from 1789-1812. These years saw the French Revolution, a general European war, and a resulting series of challenges for American national security policy. n558 For the Republic's first five years, the Washington administration waged a difficult conflict with Indians in the Ohio River Valley, and the Adams administration fought a naval war, known as the Quasi-War, toward the turn of the century. Neither of these wars were small conflicts. The former witnessed the crushing defeat of the nation's first standing army by the Indians in 1791, in response to which the Washington administration created the nation's first permanent military establishment. n559 Even though no declaration of war had issued against the Indians, [*291] George Washington exclaimed, "But, we are involved in actual war!" n560 The Quasi-War produced not only raids on merchant commerce, but also full-scale battles between American and French ships, and the creation of a huge 10,000-man regular army, with George Washington as its Commander in Chief and Alexander Hamilton as his deputy. n561 In neither 1789 nor 1798 did the President or Congress believe a declaration of war was necessary. In both conflicts, the President managed international relations, and after diplomacy had failed, ultimately decided to use military force. Once he had decided upon combat, the President turned to the Congress for the raising and supply of the necessary troops and sailors. In the context of voting on the President's requests, Congress had ample opportunity - of which it invariably took advantage - to discuss war aims and strategies. Thus, in 1789 President Washington and his Secretary of War decided that the Indians in the Northwest were preventing the peaceful settlement of territory ceded by Great Britain and that a combination of military force and diplomacy was needed. Once the Indian war bogged down, President Washington had to ask Congress for more and more funds: first for a call-out of the militia in 1789 to begin operations; then, for 2,000 regular troops, after the first, inconclusive battle with the Indians in 1790; then, after the stunning defeat of General St. Clair the next year, for a tripling of military expenditures to one million dollars a year and 5,000 more troops. n562 Although Congress agreed to the President's requests, each appropriation was accompanied by a vigorous discussion over the war's merits. n563 For example, Washington's final request for a 5,000-man army, which finally defeated the Indians under General "Mad" Anthony Wayne at the Battle of Fallen Timbers in 1794, provoked a bitter debate in Congress over whether peace efforts would be more effective than force, whether white settlers had provoked the war, whether the state militias should be used rather than army regulars, and whether it would make for better strategy to seek one winning blow rather than "dribbling away" money every year. n564 Congress' approval of the appropriation by a vote of 29-19 in the House and 15-12 in the Senate constituted an explicit authorization of the President's war plans. Congress never considered a declaration of war necessary. n565 [*292] The Quasi-War further supports the conclusion that a declaration of war was not understood as necessary for authorizing combat. The Quasi-War arose out of revolutionary France's efforts to shatter Britain's peace with the United States established by the Jay Treaty of 1794. n566 After a series of French raids on American commerce and the declaration of France's Directory that American ships would be seized if they carried British goods, President Adams sent three diplomatic emissaries to Paris to negotiate a settlement. When this encounter exploded into the "XYZ Affair," Adams sent the country on a course for war by publicly releasing the dispatches of the envoys, by requesting new ships for the navy, and by seeking the buildup of coastal defenses and a new army of up to 50,000 men. In response, Congress approved Adams' designs to wage a naval war against France by supplying the funds for the bulked up military. n567 "We are," Federalists declared, "now in a state of war." n568 Yet Congress never brought to a vote a motion to declare war, even though Federalists controlled both houses and the presidency. Even those High Federalists who wanted a declaration viewed its benefits in a purely domestic light. A declaration, they thought, would "rouse the spirit of the people, facilitate the collection of taxes, quicken the military preparations, and cut off the correspondence of Republicans with France by making such correspondence a crime punishable by law." n569 But in terms of an authorization of combat, there was no need for a declaration because Congress had already played a significant role in raising and funding the military and in setting rules for the capture of French ships. Congress' failure to declare war against France also demonstrates the limited nature of the conflict. Not seeking a declaration was a deliberate decision of President John Adams, who believed that a full-scale war against France would not be in the national interest. His decision fulfilled the hopes of those Framers who wanted the President to play a more significant role than that of a mere super-magistrate. As we have seen, the Framers left the crucial decisions in war to the President because they viewed him as the nation's protector and representative. Today, we may see less need for a national presidency that could counter Congress' regionalist interests. But the late eighteenth and early nineteenth centuries were a time when the Framers rightfully could fear that a majority in Congress might support a war for sectional, rather than national, advantage. Thus, the Framers looked to the President to lead [*293] America into war when the national interest required, or to discourage war when self-interested factions gained control of Congress. The Framers' design was realized during both the Quasi-War and the 1789 Indian War. In the Indian War, President Washington pursued a limited war that rejected the hopes of both New England Federalists, who opposed the war because of its costs, and Southern Republicans, who sought an aggressive war to secure territorial gain. n570 During the Quasi-War, Adams resisted the demands of his own pro-English party leaders, who wanted a total war against France. n571 Believing that peace was possible without risking the costs of a full-scale war, Adams opted for a limited naval conflict that permitted diplomatic contacts and, eventually, a negotiated reconciliation. n572 In both cases, the President pursued the national interest, while different factions in Congress quarreled over aims and strategies in order to achieve their regional or party objectives. The Quasi-War also supports this study's argument that the Framers did not intend the judiciary to play a role in the decisions on war. Unlike the Indian War, the Quasi-War generated disputes that reached the Supreme Court in a trilogy of cases:Bas v. Tingy, n573 Talbot v. Seeman, n574 and Little v. Barreme. n575 Commentators have placed great store in these opinions, particularly Little, as contemporaneous evidence showing that courts can exercise jurisdiction over war power cases. n576 However, none of these cases called upon the Supreme Court to decide that the President was waging war in violation of the Constitution, or that Congress had failed to declare that a state of war existed, or that courts could step in to adjudicate inter-branch disputes over war. In fact, the precedent set by the trilogy remains quite modest. All three revolved around the question of how much of the value of a ship and its cargo, seized by an American commander during the naval operations against France, flowed to the commander instead of to the ship's owner. Such issues did not involve the power of going to war, but rather the domestic and legal effects of war once it had begun. Further, these cases clearly fell within Congress' power to "make Rules concerning Captures on...Water" n577 and Article III's grant of the jurisdiction over "all [*294] Cases of admiralty and maritime Jurisdiction," n578 which from its earliest days, the Supreme Court has read to authorize federal common lawmaking power. n579 Rather than making grand pronouncements on the separation of powers, cases such as Bas, Talbot, and Little underscored Congress' role in deciding on the legal state of relations with a hostile nation. In Bas and Talbot, for example, owners of ships that had been captured by the French, and then recaptured by American warships, challenged the prize rules that would give the American commanders a substantial portion of the ship's proceeds. They argued that the prize rules did not operate because Congress had failed to declare war formally, and that as a result the Court should hold inapplicable any statutes concerning recaptures until a declaration of war had been issued. n580 In both cases the Court held that Congress had the sole power to decide on the legal nature of hostilities: whether they would be "general" or "partial," "public" or "private," "solemn" and "imperfect" or "limited" and "imperfect." According to Justice Chase, "Congress is empowered to declare a general war, or Congress may wage a limited war; limited in its place, in objects, and in time." n581 Chase then emphasized a declaration of war as important primarily in international law:"If a general war is declared, its extent and operations are only restricted and regulated by the jus belli, forming a part of the law of nations; but if a partial war is waged, its extent and operation depend on our municipal laws." n582 In adjudicating cases stemming from a limited war, the courts must defer to Congress' judgment on which laws of war would apply to the conflict, and which would not. Chief Justice Marshall expressed this principle in Talbot:"Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed." n583 In all three cases, the Court rebuffed arguments that it should determine whether a state of war existed, or whether Congress and the President had acted constitutionally in beginning the conflict with France. n584 Neither Bas, Talbot, nor Little (nor all three added together) constituted the Marbury of foreign relations law. [*295] Conclusions This study has shown that the Framers intended Congress to participate in war-making by controlling appropriations. Although the Constitution gives the President the initiative in war by virtue of his powers over foreign relations and the military, it also forces the President to seek money and support from Congress at every turn. In making decisions whether to raise and support the requested forces, Congress can judge the benefits of a particular war as well as influence its means and ends. Such was the practice under the British Constitution and under the early American governments, elements of which provided models for the drafters of the new federal Constitution. Such was the explanation given by the supporters of the Constitution to its opponents. Contrary to the arguments by today's scholars, the Declare War Clause does not add to Congress' store of war powers at the expense of the President. Rather, the Clause gives Congress a judicial role in declaring that a state of war exists between the United States and another nation, which bears significant legal ramifications concerning the rights and duties of American citizens. Congress' power to declare war also has the additional effect of ousting the courts from war powers disputes, because it deprives the courts of the ability to second-guess Congress' determination of whether a formal state of war exists. [*296] The Framers also may have believed judicial participation unwarranted because of the structure established in the war powers area. The potentially conflicting powers of the President and Congress establishes a system that demanded no constitutionally correct method of waging war, but instead permits flexible decision-making based on each branch's exercise of its powers. Aside perhaps from policing against the most extreme violations of those grants by another branch - such as if Congress attempted to "fire" the President as Commander in Chief - the courts have no constitutional standards to apply to a process the Framers left intentionally undefined. Instead, the Framers understood that the legislature and the executive would use their powers to defend the prerogatives of their departments, as well as to pursue their policy preferences against a recalcitrant coordinate branch. The Framers expected the branches to cooperate to wage a successful war, but also anticipated conflict should the two disagree. They also provided the means for the government to continue to function in war, so long as the legislature acquiesced in the actions of the executive.