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CRS Annotated Constitution

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THE POWER TO RAISE AND MAINTAIN ARMED FORCES

Purpose of Specific Grants

The clauses of the Constitution, which give Congress authority to raise and support armies, and so forth, were not inserted to endow the national government rather than the States with the power to do these things but to designate the department of the Federal Government, which would exercise the powers. As we have noted above, the English king was endowed with the power not only to initiate war but the power to raise and maintain armies and navies.1435 Aware historically that these powers had been utilized to the detriment of the liberties and well–being of Englishmen and aware that in the English Declaration of Rights of 1688 it was insisted that standing armies could not be maintained without the[p.312]consent of Parliament, the Framers vested these basic powers in Congress.1436

Time Limit on Appropriations for the Army

Prompted by the fear of standing armies to which Story alluded, the framers inserted the limitation that “no appropriation of money to that use shall be for a longer term than two years.” In 1904, the question arose whether this provision would be violated if the Government contracted to pay a royalty for use of a patent in constructing guns and other equipment where the payments are likely to continue for more than two years. Solicitor–General Hoyt ruled that such a contract would be lawful; that the appropriations limited by the Constitution “are those only which are to raise and support armies in the strict sense of the word ‘support,’ and that the inhibition of that clause does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for the common defense. . . .”1437 Relying on this earlier opinion, Attorney General Clark ruled in 1948 that there was “no legal objection to a request to the Congress to appropriate funds to the Air Force for the procurement of aircraft and aeronautical equipment to remain available until expended.”1438

Conscription

The constitutions adopted during the Revolutionary War by at least nine of the States sanctioned compulsory military service.1439 Towards the end of the War of 1812, conscription of men for the army was proposed by James Monroe, then Secretary of War, but opposition developed and peace came before the bill could be enacted.1440 In 1863, a compulsory draft law was adopted and put into operation without being challenged in the federal courts.1441 Not so the Selective Service Act of 1917.1442 This measure was attacked on the grounds that it tended to deprive the States of the right to “a well–regulated militia,” that the only power of Congress to exact compulsory service was the power to provide for calling forth the militia for the three purposes specified in the Constitu[p.313]tion, which did not comprehend service abroad, and finally that the compulsory draft imposed involuntary servitude in violation of the Thirteenth Amendment. The Supreme Court rejected all of these contentions. It held that the powers of the States with respect to the militia were exercised in subordination to the paramount power of the National Government to raise and support armies, and that the power of Congress to mobilize an army was distinct from its authority to provide for calling the militia and was not qualified or in any wise limited thereby.1443

Before the United States entered the first World War, the Court had anticipated the objection that compulsory military service would violate the Thirteenth Amendment and had answered it in the following words: “It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.”1444 Accordingly, in the Selective Draft Law Cases,1445 it dismissed the objection under that amendment as a contention that was “refuted by its mere statement.”1446

Although the Supreme Court has so far formally declined to pass on the question of the “peacetime” draft,1447 its opinions leave no doubt of the constitutional validity of the act. In United States v. O’Brien,1448 upholding a statute prohibiting the destruction of selective service registrants’ certificate of registration, the Court, speaking through Chief Justice Warren, thought “[t]he power of Congress to classify and conscript manpower for military service is ‘beyond question.”’1449 In noting Congress’ “broad constitutional power” to raise and regulate armies and navies,1450 the Court has specifically observed that the conscription act was passed “pursuant to” the grant of authority to Congress in clauses 12–14.1451


Footnotes

1435 W. Blackstone, Commentaries, St. G. Tucker ed. (Philadelphia: 1803), 263.
1436 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1187.
1437 25Ops. Atty. Gen.105,108 (1904).
1438 40Ops. Atty. Gen.555 (1948).
1439 Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox v. Wood, 247 U.S. 3 (1918).
1440 Id., 245 U.S., 385.
1441 Id., 386–388. The measure was upheld by a state court. Kneedler v. Lane, 45Pa. St.238 (1863).
1442 Act of May 18, 1917, 40 Stat. 76 .
1443 Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918).
1444 Butler v. Perry, 240 U.S. 328, 333 (1916).
1445 245 U.S. 366 (1918).
1446 Id., 390.
1447 Universal Military Training and Service Act of 1948, 62 Stat. 604 , as amended, 50 U.S.C. App. §§ 451–473. Actual conscription has been precluded as of July 1, 1973, P.L. 92–129, 85 Stat. 353, 50 U.S.C. App. Sec. 467(c), and registration was discontinued in 1975. Pres. Proc. No. 4360, 3 C.F.R. 462, 50 U.S.C. App. Sec. 453 note. Registration, but not conscription, was reactivated in the wake of the invasion of Afghanistan. P.L. 96–282, 94 Stat. 552 (1980).
1448 391 U.S. 367 (1968).
1449 Id., 377, quoting Lichter v. United States, 334 U.S. 742, 756 (1948).
1450 Schlesinger v. Ballard, 419 U.S. 498, 510 (1975).
1451 Rostker v. Goldberg, 453 U.S. 57, 59 (1981). See id., 64– 65. And see Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984) (upholding denial of federal financial assistance under Title IV of the Higher Education Act to young men who fail to register for the draft).
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