12AD.4.7b H.R. 145 Declaration of War with Mexico, 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.

Spelling [illegible] from the United States [[hand-written in margin]] [[lines struck out]]
Strike out the preamble [[hand-written in margin]] [[lines struck out]]
Repel invasion [[hand-written in margin]] [[lines struck out]]
The title [illegible] of Mrs BOYD, amended to read as follows. [illegible] [[lines struck out]]
providing for the prosecution of the existing war between the United States and the Republic of Mexico.”
The bill as it passed the House of Representatives, in as follows: [[lines struck out]]
A BILL to authorize the President of the United States, under certain contingencies therein named, to accept the services of volunteer [illegible] and for other purposes [[lines struck out]]

Whereas, by the act of the Republic of Mexico, a state of war exists between that Government and the United States:

Therefore-
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, for the purpose of enabling the Government of the United States to prosecute said war to a speedy and successful termination, the President be, and he is hereby, authorized to employ the militia, naval, and military forces of the United States, and to call for and accept the services of any number of volunteers, not exceeding fifty thousand, who may offer their services, as cavalry, artillery, infantry, or riflemen, to serve twelve months after they shall have arrived at the place of rendezvous, or to the end of the war, unless sooner discharged.

Sec 1. Line 13 insert after discharged insert
According to the time for which they shall have been mustered into service [[hand-written in margin]]

That the sum of ten millions of dollars be and the same is hereby appropriated, out of any money in the Treasury or to come into the Treasury not otherwise appropriated, for the purpose of carrying the provisions of this act into effect.

Sec. 2. And be it further enacted, That the militia, when called into service of the United States by virtue of this act, or any other act, may, if in the opinion of the President of the United States the public interest requires it, be compelled at the place of rendezvous, in any one year, unless sooner discharged.

Sec. 3. And be it further enacted, That the said volunteers shall furnish their own clothes, and if cavalry, their own horses

Sec. 3 line 2 after [illegible] insert
and horse equipments; [[hand-written in margin]]

and when mustered into service shall be
line 3 strike out “equipped” [[hand-written in margin]]

armed and equipped [[line struck out]]

at the expense of the United States.

Sec. 4. And be it further enacted, That said volunteers shall, when called into actual service, and while remaining therein, be subject to the rules and articles of war, and shall be, in all respects except as to clothing and pay, placed on the same footing with similar corps of the United States army; and in lieu of clothing every non-commissioned officer and private in any company, who may thus offer himself, shall be entitled, when called into actual service, to receive in money a sum equal to the cost of clothing of a non-commissioned officer or private (as the case may be) in the regular troops of the United States.

Sec 5. And be it further enacted, That the said volunteers so offering their services shall be accepted by the President in companies, battalions, squadrons, and regiments, whose officers shall be appointed in the manner prescribed by law in the several States and Territories to which such companies, battalions, squadrons, and regiments, shall respectively belong.

Sec 6. Line out after “expedient line 6 to “and” in line 10 [[hand-written in margin]]

Sec. 6. And be it further enacted, That the President of the United States be, and he is hereby, authorized to organize companies so tendering their service into battalions or squadrons, battalions and squadrons into regiments, regiments into brigades, and brigades into divisions, as soon as the number of volunteers shall render such organization, in his judgment, expedient;

Strike out generals [[hand-written in margin]]

And shall, by and with the advice of the Senate, appoint the generals of brigade and division, and the general staff, as now authorized by law: Provided, however, That major generals and brigadier generals shall have the appointment of their own aids-de-[illegible] [[lines struck out]]

and the President shall, if necessary, apportion the staff, field, and general officers among the respective States and Territories from which the volunteers shall tender their services as he may deem proper.

Sec 7. And be it further enacted, That the volunteers who may be received into the service of the United States by virtue of the provisions of this act, and who shall be wounded or otherwise disabled in the service, shall be entitled to all the benefit which may be conferred on persons wounded in the service of the United States.

Sec 8. And be it further enacted, That the President of the United States be, and he is hereby, authorized forthwith to complete all the public armed vessels now authorized by law, and to purchase or charter, arm, equip, and man, such merchant vessels and steam boats as, upon examination, may be found fit, or easily converted into armed vessels fit for the public service, and in such number as he may deem necessary for the protection of the seaboard, lake coast, and the general defense of the country.

Sec. 9 after “allowances” in line 5 strike out to and [illegible] [[hand-written in margin]]

Sec. 9. And be it further enacted, That whenever the militia or volunteers are called and received into the service of the United States, under the provisions of this act, they shall have the organization of the army of the United States, and shall have the same pay and allowances;

Except as follows, to wit: Privates of infantry, artillery, and [illegible], shall receive ten dollars per month, and privates of volunteer mounted corps twenty dollars per month for their services and the use and risk of their horses. [[lines struck out]]

Strike out 10 and insert 8. [[hand-written in margin]]
Privates receive, [illegible] [[hand-written in margin]]
Insert: and all mounted privates, non-commissioned officers, musicians, and artificers, shall be allowed 40 cents per day for the use and risk of their horses, except of horses actually killed in action; and if any mounted volunteer, private, non-commissioned officer, musician, or artificer, shall not keep himself provided with a serviceable horse, the said volunteer shall serve on foot. [[hand-written in margin]