Apparently this is a fairly common argument because Mr. Thomas E. Woods, libertarian, economist and historian, has written specifically to address this argument.
Here is the link to his whole article.
The typical neoconservative response to this argument is to claim that the president has sent troops into battle hundreds of times without congressional authorization. A well-known neoconservative whose name I shall mercifully keep to myself made just this argument in his review of my Politically Incorrect Guide to American History.
Let’s see how well the claim stands up.
Supporters of a broad executive war power have sometimes appealed to the Quasi War with France, in the closing years of the eighteenth century, as an example of unilateral warmaking on the part of the president. Francis Wormuth, an authority on war powers and the Constitution, describes that contention as "altogether false." John Adams "took absolutely no independent action. Congress passed a series of acts that amounted, so the Supreme Court said, to a declaration of imperfect war; and Adams complied with these statutes." (Wormuth’s reference to the Supreme Court recalls a decision rendered in the wake of the Quasi War, in which the Court ruled that Congress could either declare war or approve hostilities by means of statutes that authorized an undeclared war. The Quasi War was an example of the latter case.)
Consider an interesting and revealing incident that occurred during the Quasi War. Congress authorized the president to seize vessels sailing to French ports. But President Adams, acting on his own authority and without the sanction of Congress, instructed American ships to capture vessels sailing either to or from French ports. Captain George Little, acting under the authority of Adams’ order, seized a Danish ship sailing from a French port. When Little was sued for damages, the case made its way to the Supreme Court. Chief Justice John Marshall ruled that Captain Little could indeed be sued for damages in the case. "In short," writes Louis Fisher in summary, "congressional policy announced in a statute necessarily prevails over inconsistent presidential orders and military actions. Presidential orders, even those issued as Commander in Chief, are subject to restrictions imposed by Congress."
Another incident frequently cited on behalf of a general presidential power to deploy American forces and commence hostilities involves Jefferson’s policy toward the Barbary states, which demanded protection money from governments whose ships sailed the Mediterranean. Immediately prior to Jefferson’s inauguration in 1801, Congress passed naval legislation that, among other things, provided for six frigates that "shall be officered and manned as the President of the United States may direct." It was to this instruction and authority that Jefferson appealed when he ordered American ships to the Mediterranean. In the event of a declaration of war on the United States by the Barbary powers, these ships were to "protect our commerce & chastise their insolence – by sinking, burning or destroying their ships & Vessels wherever you shall find them."
In late 1801, the pasha of Tripoli did declare war on the U.S. Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense"; Congress alone could authorize "measures of offense also." Thus Jefferson told Congress: "I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight."
Jefferson consistently deferred to Congress in his dealings with the Barbary pirates. "Recent studies by the Justice Department and statements made during congressional debate," Fisher writes, "imply that Jefferson took military measures against the Barbary powers without seeking the approval or authority of Congress. In fact, in at least ten statutes, Congress explicitly authorized military action by Presidents Jefferson and Madison. Congress passed legislation in 1802 to authorize the President to equip armed vessels to protect commerce and seamen in the Atlantic, the Mediterranean, and adjoining seas. The statute authorized American ships to seize vessels belonging to the Bey of Tripoli, with the captured property distributed to those who brought the vessels into port. Additional legislation in 1804 gave explicit support for ‘warlike operations against the regency of Tripoli, or any other of the Barbary powers.’"
Consider also Jefferson’s statement to Congress in late 1805 regarding a boundary dispute with Spain over Louisiana and Florida. According to Jefferson, Spain appeared to have an "intention to advance on our possessions until they shall be repressed by an opposing force. Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force…. But the course to be pursued will require the command of means which it belongs to Congress exclusively to yield or to deny. To them I communicate every fact material for their information and the documents necessary to enable them to judge for themselves. To their wisdom, then, I look for the course I am to pursue, and will pursue with sincere zeal that which they shall approve."
The nineteenth century, on closer inspection, turns out not to provide the precedents for presidential warmaking that its proponents would prefer to see. We don’t see anything approaching the open-ended and truly staggering authority that neoconservatives would grant the president until the closing years of that century, and even then only in miniature.
Cornell University’s Walter LaFeber pinpoints the origins of modern presidential war powers in an obscure incident from 1900. In 1898 a group of anti-foreign Chinese fighters known to the West as the Boxers rose up in protest against foreign exploitation and extraterritorial privileges in their country. They targeted Christian missionaries and Chinese converts, as well as French and Belgian engineers. After the German minister was killed in 1900, several nations sent troops to restore order amid the growing terror. McKinley contributed 5,000 American troops. This apparently minor action, however, was pregnant with consequences...
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