The Historical Presidency: The Development of Unilateral Power and the Problem of the Power to Warn: Washington through McKinley

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Now, Therefore, I, John E Kennedy, President of the United States, under and by virtue of the authority vested in me by the Constitution and laws of the United States, including Chapter 15 of Title 10 of the United States Code, particularly sections 332, 333 and 334 thereof, do command all persons engaged in such obstructions of justice to cease and desist there from and to disperse and retire peaceably forthwith.

--Proclamation #3497, 1962

Now, Therefore, I, George Bush, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, including Chapter 15 of Title 10 of the United States Code, do command all persons engaged in such acts of violence and disorder to cease and desist there from and to disperse and retire peaceably forthwith.

--Proclamation #6427, 1992

The proclamations quoted above have very similar language but come from two very different contexts. In the first, John E Kennedy was facing opposition to civil rights in Mississippi, and the Mississippi governor and law enforcement were complicit in the disorder. In the second, George H. W. Bush was dealing with riots in Los Angeles, and the governor of California and law enforcement were requesting federal intervention to help put the riots down. Both proclamations are alike, however, in at least two respects. In each, the president had to decide how and when to treat a complex and racially charged local problem. But there is another way in which these proclamations are similar. Long before Presidents Kennedy and Bush issued these orders, eighteenth- and nineteenth-century presidents issued proclamations to the public warning against domestic insurrection. Several of these individual proclamations are well known and have been the subject of scholarly study. Among these are George Washington's Proclamation of Neutrality, Andrew Jackson's Nullification Proclamation, Abraham Lincoln's Emancipation Proclamation, and Andrew Johnson's proclamations of amnesty to the Confederates. Each of these proclamations altered policy in the United States and galvanized opposition; each is a marker in the development of executive power. But these proclamations are not as isolated as they might seem. Rather, they are part of a longer list of unilateral presidential orders among early presidents that, as a group, have received little scholarly attention.

The presidency before Theodore Roosevelt is especially rich in these types of unilateral orders, but this is not to say that they are merely of antiquarian interest. As the examples from Kennedy and Bush show, even modern presidents have to resort to unilateral power in dealing with domestic unrest. Moreover, both the Washington example and these more recent ones suggest that the decision to issue this kind of proclamation can be very difficult. Washington's Neutrality Proclamation provoked a constitutional debate that focused attention to the importance of the presidency in foreign policy (Elkins and McKitrick 1995). As the historian Christopher Young (2011a) has shown, the proclamation was contested in the public and even resisted by juries, at least until Congress passed the Neutrality Act of 1794. Likewise, when Washington issued his proclamation about the Whiskey Rebellion, the Jeffersonian opposition used the opportunity to organize and unify disparate strands of opposition, so much so that Washington went so far as to condemn "democratic societies" in his annual message to Congress. In the case of Kennedy, the president and his advisors wanted to avoid direct unilateral action and instead rely on persuasion in order to avoid controversy, not to mention jeopardize Kennedy's reelection chances among Southern moderates. As Syvlia reports (1995, 402), Theodore Sorenson advised the president that Mississippi's "defiance should be against the majesty of the United States, not John E Kennedy." The power to proclaim is potentially explosive. …