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War; Military Establishment

Clauses 11, 12, 13, and 14. The Congress shall have power *** ;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.

To provide and maintain a Navy.

To make Rules for the Government and Regulation of the land and naval Forces.

THE WAR POWER

Source and Scope

Three Theories.—Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,1485 Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by Article I, § 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.1486 Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland,1487 he listed the power “to declare and conduct a war”1488 as one of the “enumerated powers” from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War, the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex parte Milligan, Chief Justice 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.”1489 In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,1490 the Court referred to “the war power” as a single unified power.1491

An Inherent Power.—Thereafter, we find the phrase, “the war power,” being used by both Chief Justice White1492 and Chief Justice Hughes,1493 the former declaring the power to be “complete and undivided.”1494 Not until 1936, however, did the Court explain the logical basis for imputing such an inherent power to the Federal Government. In United States v. Curtiss-Wright Corp.,1495 the reasons for this conclusion were stated by Justice Sutherland as follows: “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 power 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.”1496

1485 THE FEDERALIST, No. 23 (J. Cooke ed. 1937), 146–51.

1486 Penhallow v. Doane, 3 U.S. (3 Dall.) 53 (1795).

1487 17 U.S. (4 Wheat.) 316 (1819).

1488 17 U.S. at 407. (Emphasis supplied.)

1489 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (dissenting opinion); see also Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871); and United States v. MacIntosh, 283 U.S. 605, 622 (1931).

1490 CONG. GLOBE, 37th Congress, 1st Sess., App. 1 (1861).

1491 Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 86 (1875).

1492 Northern Pac. Ry. v. North Dakota ex rel. Langer, 250 U.S. 135, 149 (1919).

1493 Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934).

1494 Northern Pac. Ry. v. North Dakota ex rel. Langer, 250 U.S. 135, 149 (1919).

1495 299 U.S. 304 (1936).

1496 299 U.S. at 316, 318. On the controversy respecting Curtiss-Wright, see The Curtiss-Wright Case, infra.

A Complexus of Granted Powers.—In Lichter v. United States,1497 on the other hand, the Court speaks of the “war powers” of Congress. Upholding the Renegotiation Act, it 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.”1498 In a footnote, it 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....”1499

1497 334 U.S. 742 (1948).

1498 334 U.S. at 757–58.

1499 334 U.S. at 755 n.3.

Declaration of War

In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered “to make war.”1500 Although there were solitary suggestions that the power should better be vested in the President alone,1501 in the Senate alone,1502 or in the President and the Senate,1503 the sentiment of the Convention, as best we can determine from the limited notes of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by the concurrence of the President and both Houses of Congress.1504 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;1505 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.1506

The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to “declare war.”1507 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 insure that the President was empowered to repel sudden attacks1508 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.1509

1500 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 313 (rev. ed. 1937).

1501 Mr. Butler favored “vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.” Id. at 318.

1502 Mr. Pinkney thought the House was too numerous for such deliberations but that the Senate would be more capable of a proper resolution and more acquainted with foreign affairs. Additionally, with the States equally represented in the Senate, the interests of all would be safeguarded. Id.

1503 Hamilton’s plan provided that the President was “to make war or peace, with the advice of the senate . . .” 1 id. at 300.

1504 2 id., 318–319. In THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 465, Hamilton notes: “[T]he President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,—all which, by the Constitution under consideration, would appertain to the legislature.” (Emphasis in original). And see id. at No. 26, 164–171. Cf. C. BERDAHL, WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES ch. V (1921).

1505 THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 464–465, 470. During the Convention, Gerry remarked that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 318 (rev. ed. 1937).

1506 The Articles of Confederation vested powers with regard to foreign relations in the Congress.

1507 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 318– 319 (rev. ed. 1937).

1508 Jointly introducing the amendment to substitute “declare” for “make,” Madison and Gerry noted the change would “leav[e] to the Executive the power to repel sudden attacks.” Id. at 318.

1509 Connecticut originally voted against the amendment to substitute “declare” for “make” but “on the remark by Mr. King that ‘make’ war might be understood to ‘conduct’ it which was an Executive function, Mr. Ellsworth gave up his opposition, and the vote of Connecticut was changed... .” Id. at 319. The contemporary and subsequent judicial interpretation was to the understanding set out in the text. Cf. Talbot v. Seeman, 5 U.S. ()1 Cr., 1, 28 (1801) (Chief Justice Marshall: “The whole powers of war being, by the Constitution of the United States, vested in congress, the acts of that body alone can be resorted to as our guides in this inquiry.”); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866).

An early controversy revolved about the issue of the President’s powers and the necessity of congressional action when hostilities are initiated against us 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 Jefferson sent a squadron of frigates to the Mediterranean to protect our 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.1510 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 we were already in a state of war and no declaration by Congress was needed.1511 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 . . .”1512 But no formal declaration of war was passed, Congress apparently accepting Hamilton’s view.1513

1510 MESSAGES AND PAPERS OF THE PRESIDENTS 326, 327 (J. Richardson ed., 1896).

1511 7 WORKS OF ALEXANDER HAMILTON 746–747 (J. Hamilton ed., 1851).

1512 2 Stat. 129, 130 (1802) (emphasis supplied).

1513 Of course, Congress need not declare war in the all-out sense; it may provide for a limited war which, it may be, the 1802 statute recognized. Cf. Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800).

Sixty years later, the Supreme Court sustained the blockade of the Southern ports instituted by Lincoln in April 1861 at a time when Congress was not in session.1514 Congress had subsequently ratified Lincoln’s action,1515 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 nonetheless approved, five-to-four, the blockade order as an exercise of Presidential power alone, on the ground that a state of war was a fact. “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.”1516 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.1517

The view of the majority was proclaimed by a unanimous Court a few years later when it became necessary to ascertain the exact dates on which the war began and ended. The Court, the Chief Justice said, 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.”1518

These cases settled the issue whether a state of war could exist without formal declaration by Congress. When hostile action is taken against the Nation, or against its citizens or commerce, the appropriate response by order of the President may be resort to force. But the issue so much a source of controversy in the era of the Cold War and so divisive politically in the context of United States involvement in the Vietnam War has been whether the >President is empowered to commit troops abroad to further national interests in the absence of a declaration of war or specific congressional authorization short of such a declaration.1519 The Supreme Court studiously refused to consider the issue in any of the forms in which it was presented,1520 and the lower courts generally refused, on “political question” grounds, to adjudicate the matter.1521 In the absence of judicial elucidation, the Congress and the President have been required to accommodate themselves in the controversy to accept from each other less than each has been willing to accept but more than either has been willing to grant.1522

1514 The Prize Cases, 67 U.S. (2 Bl.) 635 (1863).

1515 12 Stat. 326 (1861).

1516 The Prize Cases, 67 U.S. (2 Bl.) 635, 669 (1863).

1517 67 U.S. at 682.

1518 The Protector, 79 U.S. (12 Wall.) 700, 702 (1872).

1519 The controversy, not susceptible of definitive resolution in any event, was stilled for the moment, when in 1973 Congress set a cut-off date for United States military activities in Indochina, P.L. 93–52, 108, 87 Stat. 134, and subsequently, over the President’s veto, Congress enacted the War Powers Resolution, providing a framework for the assertion of congressional and presidential powers in the use of military force. P.L. 93–148, 87 Stat. 555 (1973), 50 U.S.C. §§ 1541–1548.

1520 In Atlee v. Richardson, 411 U.S. 911 (1973), aff’g. 347 F. Supp. 689 (E.D.Pa., 1982), the Court summarily affirmed a three-judge court’s dismissal of a suit challenging the constitutionality of United States activities in Vietnam on political question grounds. The action constituted approval on the merits of the dismissal, but it did not necessarily approve the lower court’s grounds. See also Massachusetts v. Laird, 400 U.S. 886 (1970); Holtzman v. Schlesinger, 414 U.S. 1304, 1316, 1321 (1973) (actions of individual justices on motions for stays). The Court simply denied certiorari in all cases on its discretionary docket.

1521 E.g., Velvel v. Johnson, 287 F. Supp. 846 (D.Kan. 1968), aff’d sub nom. Velvel v. Nixon, 415 F.2d 236 (10th Cir. 1969), cert. denied, 396 U.S. 1042 (1970); Luftig v. McNamara, 252 F. Supp. 819 (D.D.C. 1966), aff’d 373 F.2d 664 (C.A.D.C. 1967), cert. denied, 389 U.S. 945 (1968); Mora v. McNamara, 387 F.2d 862 (D.C., 1967), cert. denied, 389 U.S. 934 (1968); Orlando v. Laird, 317 F. Supp. 1013 (E.D.N.Y. 1970), and Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970), consolidated and aff’d, 443 F.2d 1039 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971); Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973) cert. denied, 416 U.S. 936 (1974); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973).

During the 1980s, the courts were no more receptive to suits, many by Members of Congress, seeking to obtain a declaration of the President’s powers. The political question doctrine as well as certain discretionary authorities were relied on. See, e.g., Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982) (military aid to El Salvador), affd. 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984); Conyers v. Reagan, 578 F. Supp. 324 (D.D.C. 1984) (invasion of Grenada), dismissed as moot, 765 F.2d 1124 (D.C.Cir. 1985); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (reflagging and military escort operation in Persian Gulf), affd. No. 87–5426 (D.C.Cir. 1988); Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990) (U.S. Saudia Arabia/Persian Gulf deployment).

1522 For further discussion, see section on President’s commander-in-chief powers.

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Last modified: June 9, 2014