directives, a precedent that would be followed
ration as president, one would expect him
many times during the ensuing years.
to have exercised war powers in a limited
Until 1861, however, presidential direc-
and judicious fashion. The facts paint a
tives were issued infrequently. A recent study
rather different picture.
by the Congressional Research Service pro-
Lincoln fought a war for nearly three
vides a count, by president, of what it calls
months by presidential directive--acting first,
"executive orders," starting with Washing-
seeking congressional approval later. He
ton.6 8 According to that study, only 143 exec-
essentially ignored Congress's power to
utive orders were issued in the 72 years
declare war, reducing it to a reactive, rubber-
between the first administration of President
stamp power.
Washington and the administration of
Lincoln's proclamation of April 15, 1861,
President James Buchanan. During their con-
issued 42 days after his inauguration, called
secutive eight-year terms, Presidents
for 75,000 militia to suppress the southern
Madison and Monroe each issued only one
insurrection and for Congress to convene on
such order.6 9 That practice changed dramati-
July 4, 1861.7 1 Between April 15 and July 4, he
cally with the inauguration of President
actively undertook the war effort without
Abraham Lincoln, who ruled by presidential
congressional participation.
That action estab-
directive. After Lincoln, however, prior prac-
On April 19 and 27, 1861, again by procla-
lished the danger-
tice returned--until the Progressive Era, and
mation, Lincoln declared a blockade of ports
in several southern states.7 2 The April 19
Theodore Roosevelt, when rule by executive
ous precedent of
order exploded. Table 1 is a list of the number
proclamation cited as authority the laws of
congressional rat-
of executive orders issued by each president
the United States and the law of nations. The
ification of unau-
since Lincoln.
blockade was to continue "until Congress
shall have assembled and deliberated" on the
thorized presi-
President Abraham Lincoln
secession of seven named states. The April 27
dential directives.
Writing in 1848 about the Constitution's
proclamation extended the blockade to four
separation of powers principle, Lincoln said:
additional states. When Congress finally con-
vened, it passed an act granting Lincoln
The provision of the Constitution
authority to establish blockades by procla-
mation.7 3 Following the passage of that act,
giving the war-making power to
Congress, was dictated, as I under-
Lincoln issued another, now authorized,
stand it, by the following reasons.
proclamation, dated August 16, 1861, reiter-
Kings had always been involving and
ating the declaration of a blockade of 11
southern states in the Confederacy.74
impoverishing their people in wars,
pretending generally, if not always,
On April 20, 1861, Lincoln directed the
that the good of the people was the
building of 19 warships and ordered the secre-
object. This, our Convention under-
tary of the Treasury to advance $2 million to
stood to be the most oppressive of all
three private citizens for use "in meeting such
Kingly oppressions; and they resolved
requisitions as should be directly consequent
to so frame the Constitution that no
upon the military and naval measures neces-
one man should hold the power of
sary for the defense and support of the gov-
ernment."7 5 Lincoln's May 3, 1861, proclama-
bringing this oppression upon us.
But your view destroys the whole
tion ordered the enlargement of the Army by
22,714 men and of the Navy by 18,000 men.7 6
matter, and places our President
where kings have always stood.7 0
Those actions violated Article I, section 9,
clause 7 of the Constitution: "No Money shall
be drawn from the Treasury, but in
Given Lincoln's view on the constitu-
Consequence of Appropriation made by Law."
tional separation of powers, expressed more
They also violated Article I, section 8, clauses
than a dozen years before his 1861 inaugu-
12