Article I, Section 8, Clause 11 — War Powers

ArtI.S8.C11.1 Source of Congress’s War Powers

Three different views regarding the source of “war powers” were expressed in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. In the Federalist Papers,¹ Alexander Hamilton elaborated on the theory that the war power is an aggregate of the particular powers granted to a National Government. In 1795, the argument was advanced that the National Government’s war power is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.² In McCulloch v. Maryland, Chief Justice John Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it.³ During the Civil War era, the two latter theories emerged from the Supreme Court. Speaking for four Justices in Ex parte Milligan, Chief Justice Salmon P. Chase described the power to declare war as “necessarily” extending “to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.”⁴ In another case, adopting the terminology used by President Abraham Lincoln in his Message to Congress on July 4, 1861,⁵ the Court referred to “the war power” as a single unified power.⁶

In 1936, the Court explained the logical basis for imputing such an inherent power to the Federal Government. In United States v. Curtiss-Wright Corp.,⁷ Justice George Sutherland stated the reasons for this conclusion:

As a result of the separation from Great Britain by the colonies acting as a unit, the

powers of external sovereignty passed from the Crown not to the colonies severally, but

to the colonies in their collective and corporate capacity as the United States of

America. Even before the Declaration, the colonies were a unit in foreign affairs, acting

through a common agency—namely, the Continental Congress, composed of delegates

from the thirteen colonies. That agency exercised the powers of war and peace, raised

an army, created a navy, and finally adopted the Declaration of Independence. It

results that the investment of the Federal Government with the powers of external

sovereignty did not depend upon the affirmative grants of the Constitution. The

powers to declare and wage war, to conclude peace, to make treaties, to maintain

diplomatic relations with other sovereignties, if they had never been mentioned in the

Constitution, would have vested in the Federal Government as necessary concomitants

of nationality.⁸

ArtI.S8.C11.2 Scope of Congress’s War Powers

The Supreme Court has suggested the breadth of Congress’s “war powers” covers matters beyond the authorization of military and naval operations to support economic measures with impact on private citizens.¹ For example, in McCulloch v. Maryland,² Chief Justice John Marshall listed the power “to declare and conduct a war” as one of the “enumerated powers” from which the authority to charter the Bank of the United States was deduced.³

In Lichter v. United States,⁴ upholding the Renegotiation Act,⁵ which permitted the government to recoup excessive profits from defense contractors, the Court declared that:

In view of this power ‘To raise and support Armies,’ and the power granted in the same

Article of the Constitution ‘to make all Laws which shall be necessary and proper for

carrying into Execution the foregoing Powers’, the only question remaining is whether

the Renegotiation Act was a law ‘necessary and proper for carrying into Execution’ the

war powers of Congress and especially its power to support armies.⁶

In a footnote, the Court in Lichter listed the Preamble, the Necessary and Proper Clause, the provisions authorizing Congress to lay taxes and provide for the common defense, to declare war, and to provide and maintain a navy, together with the clause designating the President as Commander in Chief of the Army and Navy, as being “among the many other provisions implementing the Congress and the President with powers to meet the varied demands of war . . . .”⁷ The Court in Lichter also compared the Renegotiation Act to the Selective Service Act, explaining that “[t]he authority of Congress to authorize each of them sprang from its war powers. Each was part of a national policy adopted in time of crisis in the conduct of total global warfare by a nation dedicated to the preservation, practice and development of the maximum measure of individual freedom consistent with the unity of effort essential to success.”⁸ The Court asserted that “[b]oth Acts were a form of mobilization” and that “[t]he language of the Constitution authorizing such measures is broad rather than restrictive.”⁹

The Court has stated that “[the war power] is not limited to victories in the field . . . [as] [i]t carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress.”¹⁰ After World War II hostilities ended, Congress enacted the Housing and Rent Act to continue the controls begun in 1942,¹¹ and continued the military draft.¹² With the outbreak of the Korean War, legislation was enacted establishing general presidential control over the economy again,¹³ and by executive order the President created agencies to exercise the power.¹⁴ The Court continued to assume the existence of a state of wartime emergency prior to Korea, but with misgivings. In Woods v. Cloyd W. Miller Co.,¹⁵ the Court held that the new rent control law were constitutional on the ground that cessation of hostilities did not end the government’s war power, but that the power continued to remedy the evil arising out of the emergency. Yet as Justice William Douglas noted for the Court:

“We recognize the force of the argument that the effects of war under modern

conditions may be felt in the economy for years and years, and that if the war power

can be used in days of peace to treat all the wounds which war inflicts on our society, it

may not only swallow up all other powers of Congress but largely obliterate the Ninth

and Tenth Amendments as well. There are no such implications in today’s decision.”¹⁶

Justice Robert Jackson, concurring, explained that he found the war power “the most dangerous one to free government in the whole catalogue of powers” and cautioned that its exercise “be scrutinized with care.”¹⁷ In Ludecke v. Watkins,¹⁸ four dissenting Justices were prepared to hold that the presumption in the statute under review of continued war with Germany was “a pure fiction” and not to be used. The majority in Ludecke held, however, that the delegated power of the President to remove enemy aliens during World War II continued after hostilities ended, determining that the termiation of “‘[t]he state of war’ . . . is a political act.”¹⁹

ArtI.S8.C11.3 Declarations of War

In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered “to make war.”¹ Although there were solitary suggestions that the power should be vested in the President alone,² in the Senate alone,³ or in the President and the Senate,⁴ the limited notes of the proceedings indicate that the Convention’s sentiment was that the potentially momentous consequences of initiating armed hostilities should require involvement by the President and both Houses of Congress.⁵ In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual;⁶ in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of Executive efficiency nor to entrust the matter solely to a branch so close to popular passions.⁷

The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to “declare war.”⁸ Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to ensure that the President was empowered to repel sudden attacks⁹ without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.¹⁰

An early controversy revolved about the issue of the President’s powers and the necessity of congressional action when hostilities are initiated against the United States rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Thomas Jefferson sent a squadron of frigates to the Mediterranean to protect American ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war.¹¹ Alexander Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war, but that when another nation made war upon the United States, the United States was already in a state of war and no declaration by Congress was needed.¹² Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli “and also to cause to be done all such other acts of precaution or hostility as the state of war will justify.”¹³ But Congress, apparently accepting Hamilton’s view, did not pass a formal declaration of war.¹⁴

Sixty years later, the Supreme Court sustained the blockade of the Southern ports that Lincoln instituted in April 1861 at a time when Congress was not in session.¹⁵ Congress subsequently ratified Lincoln’s action,¹⁶ so that it was unnecessary for the Court to consider the constitutional basis of the President’s action in the absence of congressional authorization, but the Court in its 1863 decision The Prizes Cases nonetheless approved, 5-4, the blockade order as an exercise of Presidential power alone, on the ground that a state of war was a fact.¹⁷ The Court reasoned: “The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.”¹⁸ The minority challenged this doctrine on the ground that while the President could unquestionably adopt such measures as the laws permitted for the enforcement of order against insurgency, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences ensuing from a state of war.¹⁹

A unanimous Court adopted the position of the majority in the Prizes Case a few years later in The Protector when it became necessary to ascertain the exact dates on which the war began and ended. In The Protector, Chief Justice Salmon P. Chase reasoned that the Court must “refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second.”²⁰

These cases settled whether a state of war could exist without a formal declaration by Congress. When hostile action is taken against the Nation or against its citizens or commerce, the President may resort to force in response. But whether the Constitution empowers the President to commit troops abroad to further national interests absent a declaration of war or specific congressional authorization short of such a declaration has been controversial.²¹ The Supreme Court has not addressed this issue²² and lower courts have generally not adjudicated the matter on “political question” grounds.²³ Absent judicial guidance, Congress and the President have had to reach accommodations with each other.²⁴

ArtI.S8.C11.4 Enemy Property and Congress’s War Powers

In Brown v. United States,¹ Chief Justice John Marshall addressed the legal position of enemy property during wartime. He held that the mere declaration of war by Congress does not effect a confiscation of enemy property situated within the territorial jurisdiction of the United States, but that Congress could subject such property to confiscation by further action.² As an exercise of the war power, such confiscation is not subject to the restrictions of the Fifth and Sixth Amendments.³ Since such confiscation is unrelated to the personal guilt of the property owner, it is immaterial whether the property belongs to an alien, a neutral, or even to a citizen.⁴ Confiscation operates as an instrument of coercion, which, by depriving an enemy of his or her property, impairs the ability of such enemy to oppose the confiscating government while providing the confiscating government the means for conducting the war.⁵

ArtI.S8.C11.5 Prizes of War and Congress’s War Powers

The power of Congress with respect to prizes is plenary; no one can have any interest in prizes captured except by permission of Congress.¹ Nevertheless, since international law informs United States law, the Court will apply international law norms so long as such international law norms have not been modified by treaty or by legislative or executive action.² Thus, during the Civil War, the Court found that the Confiscation Act of 1861³ and the Supplementary Act of 1863,⁴ which, in authorizing the condemnation of vessels, made provision for the protection of interests of loyal citizens, merely created a municipal forfeiture and did not override or displace the law of prize.⁵ The Court decided, therefore, that when a vessel was liable to condemnation under either law, the government was at liberty to proceed under the most stringent rules of international law, with the result that the citizen would be deprived of the benefit of the protective provisions of the statute.⁶ Similarly, when Cuban ports were blockaded during the Spanish-American War, the Court held that the rule of international law exempting unarmed fishing vessels from capture applied in the absence of any treaty provision, or other public act of the government in relation to the subject.⁷