12AD.4.7a Speech on the Subject of the Mexican War (1846)

Because the exact powers of the commander in chief are not fully defined, presidents have claimed executive power in times of war and crisis as implied powers of the Office of the President. Following the declaration of war against Mexico in May 1846, many congressmen like Alexander Stephens spoke out against President James Polk. What arguments did Stephens use? What does this criticism tell us about executive privilege?

Although Congress voted to declare war on Mexico in May 1846 following President James Polk’s request, many congressmen spoke out against Polk’s actions and the congressional declaration of war. The excerpts from Alexander H. Stephens, a Whig representative from Georgia, provides one such argument about Polk’s use of executive action in time of war. In the US Constitution, the power to “declare war” is explicitly granted to the legislative branch (Congress), as is the power to “raise and support armies.” However, the president is given the power as “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Since the exact powers of commander in chief are not fully defined, presidents have claimed executive power in times of war and crisis as implied powers of the Office of the President. Presidents have used their commander-in-chief powers to create tribunals for prisoners, convene special courts to collect intelligence, deport noncitizens, and intern citizens who pose an alleged threat to national security. They have also used these powers to establish wartime agencies and programs to assist with the war effort. Sometimes these actions have been approved by Congress and sometimes they have not.

Transcript excerpt:

"… [The war has been literally provoked when there was no necessity for it, and could have been easily avoided without any detriment to our rights, interests, or honor as a nation.…

I trust I shall be able to make it appear equally clear that that step was unnecessary for any of the legitimate purposes for which the army was sent to Texas; also, that it was improper, under the circumstances, as being calculated to irritate and provoke hostilities; and further, that it was a step which the President was not clothed with the proper power legally and right­fully to take, without authority from Congress….

I need but refer to the history of the case, given by the President himself in the documents accompanying his message to the House, when he asked us to recognize a state of war with Mexico; a singular request, by-the-by, for the President to make, when the constitution gives Congress the sole power to declare war….

Congress alone has the right and power to engage in war. The President has the right to repel hostilities; but not by his policy with other nations to bring on and involve the country in a war without consultation with Congress…."