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that he had not exercised any powers not pos-

Chief of the Army and Navy of the United

sessed by Congress and asked Congress to rat-

States in time of actual armed rebellion

ify the actions he had taken previously by

against the authority and government of the

proclamation.7 8 As noted above, Congress

United States, and as a fit and necessary war

generally complied with that request. Since

measure for suppressing said rebellion."

the Civil War, the Supreme Court has upheld

the legality of presidential actions ratified by

Lincoln's Successors

Congress after the fact, observing "Congress

After Lincoln was assassinated, Congress

may, by enactment not otherwise inappropri-

moved aggressively to reduce the executive

ate, `ratify . . . acts which it might have autho-

authority of his successor, Andrew Johnson,

rized,' and give the force of law to official

to the point of passing the Tenure of Office

action unauthorized when taken."79

Act, restricting the president's power to fire

As noted above, a dozen years before he

subordinates. That law is well-known for hav-

became president, Lincoln clearly had per-

ing  precipitated  President  Johnson's

ceived and described the danger the

impeachment. What is not as well-known is

that the law was not repealed until 1887.82

Founders had sought to avert by separating

powers among three branches of govern-

In 1870 the historian Henry Adams wrote

ment. Congress was granted the power to

that "the Executive, in its full enjoyment of

declare war so that "no one man" acting

theoretical independence, is practically

Congress was

alone, like a king, could throw the nation

deprived of its necessary strength by the jeal-

granted the power

ousy of the Legislature."8 3Except for Lincoln,

into war. In April 1861, President Lincoln

to declare war so

could have called Congress into session in rel-

constitutional scholar Forrest McDonald

atively short order; instead, he presented

observed, "Nineteenth century presidents

that "no one

Congress with the difficult choice of either

continued to be little more than chief clerks

man" acting

of personnel."8 4 That state of affairs appears

placing American forces and prestige at risk,

by recalling soldiers in the field, or voting a

to have reflected more the nature of the occu-

alone, like a king,

blanket approval of unconstitutional actions.

pants of the office, however, than the nature

could throw the

By initiating the conduct of the war, Lincoln

of the office itself. According to President

nation into war.

was able to control the means by which it was

Rutherford Hayes, who issued no formally

fought, and Congress was all too willing to

designated "executive orders":

allow him to circumvent the constitutional

limitations on presidential power. That

The executive power is large because

precedent was then available to future presi-

not defined in the Constitution. The

dents, some of whom have been quite willing

real test has never come, because the

to exercise equivalent war powers, whether or

Presidents have down to the present

not a state of war exists.

been conservative, or what might be

Given the Supreme Court's identification

called conscientious men, and have

of extraconstitutional presidential powers

kept within limited range. And there is

during time of war, directives derived from

an unwritten law of usage that has

the president's role as commander in chief

come to regulate an average adminis-

have become particularly common.8 0 The

tration. But if a Napoleon ever became

President, he could make the executive

first prominent presidential directive to rely

almost what he wished to make it. The

on the commander-in-chief role to justify

war power of President Lincoln went to

presidential lawmaking during wartime was

lengths which could scarcely be sur-

Lincoln's  Emancipation  Proclamation,

passed in despotic principle.85

issued on January 1, 1863. The proclamation

cites no statute as its foundation.8 1 Instead,

Lincoln issued the proclamation "by virtue of

The quality of the men, and hence the

the power in me vested as Commander-In-

scope of the office, changed dramatically at

14