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CRS Annotated Constitution

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Cls. 11, 12, 13, and 14—The War Power

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,1397 Hamilton elaborated[p.306]the theory that the war power is an aggregate of the particular powers granted by Article I, Sec. 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.1398 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,1399 he listed the power “to declare and conduct a war”1400 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.”1401 In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,1402 the Court referred to “the war power” as a single unified power.1403

An Inherent Power.—Thereafter, we find the phrase, “the war power,” being used by both Chief Justice White1404 and Chief Justice Hughes,1405 the former declaring the power to be “complete and undivided.”1406 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. Curtis–Wright Corp.,1407 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 Con[p.307]tinental 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.”1408

A Complexus of Granted Powers.—In Lichter v. United States,1409 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.”1410 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. . . .”1411


Footnotes

1397 The Federalist, No. 23 (J. Cooke ed. ed.: 1937), 146–151.
1398 Penhallow v. Doane, 3 Dall. (3 U.S.) 53 (1795).
1399 4 Wheat. (17 U.S.) 316 (1819).
1400 Id., 407. (Emphasis supplied.)
1401 Ex parte Milligan, 4 Wall. (71 U.S.) 2, 139 (1866) (dissenting opinion); see also Miller v. United States, 11 Wall. (78 U.S.) 268, 305 (1871); and United States v. MacIntosh, 283 U.S. 605, 622 (1931).
1402 Cong. Globe, 37th Congress, 1st Sess., App. 1 (1861).
1403 Hamilton v. Dillin, 21 Wall. (88 U.S.) 73, 86 (1875).
1404 Northern Pac. Ry. Co. v. North Dakota, ex rel. Langer, 250 U.S. 135, 149 (1919).
1405 Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398 (1934).
1406 Northern Pac. Ry. Co. v. North Dakota, ex rel. Langer, 250 U.S. 135, 149 (1919).
1407 299 U.S. 304 (1936).
1408 Id., 316, 318. On the controversy respecting Curtiss– Wright, see infra, Article II.
1409 334 U.S. 742 (1948).
1410 Id., 757–758.
1411 Id., 755 n. 3.
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