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Louis Fisher, “When War Begins: Misleading Statements by Presidents” (PDF, 95KB), 40 Pres. Stud. Q. 171 (2010).  A House subcommittee in 2009 held a hearing on legislation designed to apply criminal penalties to Presidents and executive officials who mislead Congress and the American people on the need to go to war. This article reviews examples from the Mexican War in 1846 to the Iraq War of 2003 where misleading and false statements from the executive branch led the country into war. The framers would not have been surprised by that pattern. It was for that reason they placed the decision to initiate war in Congress and the deliberative process, not in legislative deference to executive assertions.

Louis Fisher, “The Mexican War and Lincoln’s ‘Spot Resolutions’” (PDF, 79KB), August 18, 2009.  President James Polk advised Congress and the American people on May 11, 1846 that a military clash between U.S. and Mexican forces occurred on “American soil.”  Two days later Congress declared war on Mexico.  Members of the Whig Party charged that Polk had been misleading in speaking about American soil if the fighting took place on disputed territory.  On January 3, 1848, the House of Representatives passed an amendment stating that the Mexican War had been “unnecessarily and unconstitutionally” begun by Polk.  After the war, Polk appeared to concede that the initial battle occurred on land possessed by Mexico.

Louis Fisher, “Destruction of the Maine (1898)” (PDF, 53KB), August 4, 2009.  After the explosion of the American battleship Maine on February 15, 1898, a naval board of inquiry determined that the blast resulted from a mine placed outside the ship.  The board could not fix responsibility on who might have placed the mine there.  The report helped build congressional and public support for a declaration of war against Spain, which came on April 25.  Doubts were raised at the time about the existence of a mine.  Some experts and later studies concluded that the explosion was caused by spontaneous combustion of a coal bunker that detonated explosive material in a nearby magazine.

Statement by Louis Fisher, appearing before the House Committee on the Judiciary, “The Executive Accountability Act of 2009” (PDF, 76KB), July 27, 2009.  H.R. 743 would apply criminal penalties to Presidents and executive officials who knowingly and willfully mislead Congress or the people of the United States for the purpose of gaining support for the use of U.S. armed forces.  This testimony discusses the framers’ intent on initiating war, previous examples beginning with the Mexican War when Presidents used misleading statements to justify war, and other values to be weighed in considering this legislation.  The testimony concludes that the bill does not violate the Bill of Attainder Clause and does not represent a prohibited legislative veto, but offers some proposed changes for H.R. 743.

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Last Updated: 12/31/2020