At Lawfare, Matthew C. Waxman (Columbia): Daniel Webster, War Powers and Bird$h*t. From the introduction:
In the course of researching a book, I’ve come across many episodes that Benjamin Wittes and I like to call “Weird War Powers $h*t.” One of my favorites is a story about American constitutional war powers and actual $h*t. It’s a story about very expensive bird-$h*t, or guano, and how one of the 19th century’s most important thinkers on war powers nearly stumbled the nation, figuratively speaking, into a giant pile of it.
Daniel Webster and War Powers
Daniel Webster was one of the 19th century’s greatest lawyers, legislators, orators and diplomats, including serving in the House and the Senate and twice as secretary of state. Throughout his service in both political branches, he staked out strong positions that only Congress constitutionally may take the country to war. As a senator in the mid-1830s, he even opposed as unconstitutional a bill to grant President Andrew Jackson the option to engage in military reprisals against French property and to grant Jackson funds to spend, at his discretion, on military defenses, arguing that these were impermissibly open-ended delegations of Congress’s war-making powers. In the Mexican-American War, Webster railed against President James Polk for waging unconstitutional war, alleging that Polk manufactured a military crisis and obtained Congress’s war declaration deceitfully. Besides the usual argument for procedurally constipating war initiation, Webster argued that, in conflict, Congress ought to exercise control over war aims.
Later as secretary of state (1841-1843 and 1850-1852), Webster maintained his position of congressional primacy on going to war. However, as the nation’s top diplomat, he also believed that the president had expansive powers over American foreign policy and responsibilities to protect American interests and citizens abroad, and he viewed gunboat diplomacy as an important tool. The strategic demands of territorial and commercial expansion during his service in the John Tyler and Millard Fillmore administrations therefore created line-drawing problems. A recurring challenge was how to project military power, including threats of force that might escalate or set the United States on a path toward conflict, without stepping over the boundary of Congress’s exclusive war powers. …
Posted at 6:08 AM