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CRS Annotated Constitution

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Delegation of Legislative Power in Wartime

The Court has insisted that in times of war as in times of peace “the respective branches of the Government keep within the power assigned to each,”1518 thus raising the issue of permissible delegation, inasmuch as during a war Congress has been prone to delegate many more powers to the President than at other times.1519 But the number of cases actually discussing the matter is few.1520 Two theories have been advanced at times when the delegation doctrine carried more of a force than it has in recent years. First, it is suggested that inasmuch as the war power is inherent in the Federal Government, and one shared by the legislative and executive branches, Congress does not really delegate legislative power when it authorizes the President to exercise the war power in a prescribed manner, a view which entirely overlooks the fact that the Constitution expressly vests the war power as a legislative power in Congress. Second, it is suggested that Congress’ power to delegate in wartime is limited as in other situations but that the[p.323]existence of a state of war is a factor weighing in favor of the validity of the delegation.

The first theory was fully stated by Justice Bradley in Hamilton v. Dillin,1521 upholding a levy imposed by the Secretary of the Treasury pursuant to an act of Congress. To the argument that the levy was a tax the fixing of which Congress could not delegate, Justice Bradley noted that the power exercised “does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the Government. . . .”1522

Both theories found expression in different passages of Chief Justice Stone’s opinion in Hirabayashi v. United States,1523 upholding executive imposition of a curfew on Japanese–Americans pursuant to legislative delegation. On the one hand, he spoke to Congress and the Executive, “acting in cooperation,” to impose the curfew,1524 while on the other hand, he noted that a delegation in which Congress has determined the policy and the rule of conduct, leaving to the Executive the carry–out of the matter, is permissible delegation.1525

A similar ambiguity is found in Lichter v. United States,1526 upholding the Renegotiation Act, but taken as a whole the Court there espoused the second theory. “The power [of delegation] is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to method to be employed may be essential to an effective use of its war powers by Congress. The degree to which Congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition. . . . Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind.”1527 The Court then examined the exigencies of war and concluded that the delegation was valid.1528


Constitution and the Advance of the Flag

Theater of Military Operations.—Military law to the exclusion of constitutional limitations otherwise applicable is the rule in the areas in which military operations are taking place. This view was assumed by all members of the Court in Ex parte Milligan,1529 in which the trial by a military commission of a civilian charged with disloyalty in a part of the country remote from the theater of military operations was held invalid. Although unanimous in the result, the Court divided five–to–four on the ground of decision. The point of disagreement was over which department of the Government had authority to say with finality what regions lie within the theater of military operations. The majority claimed this function for the courts and asserted that an area in which the civil courts were open and functioning does not;1530 the minority argued that the question was for Congress’ determination.1531 The entire Court rejected the Government’s contention that the President’s determination was conclusive in the absence of restraining legislation.1532

Similarly, in Duncan v. Kahanamoku,1533 the Court declared that the authority granted by Congress to the territorial governor of Hawaii to declare marital law under certain circumstances, which he exercised in the aftermath of the attack on Pearl Harbor, did not warrant the supplanting of civil courts with military tribunals and the trial of civilians for civilian crimes in these military tribunals at a time when no obstacle stood in the way of the operation of the civil courts, except, of course, the governor’s order.

Enemy Country.—It has seemed reasonably clear that the Constitution does not follow the advancing troops into conquered territory. Persons in such territory have been held entirely beyond the reach of constitutional limitations and subject to the laws of war as interpreted and applied by the Congress and the President.1534 “What is the law which governs an army invading an enemy’s country?” the Court asked in Dow v. Johnson.1535 “It is not the civil law of the invaded country; it is not the civil law of the conquering country; it is military law—the law of war—and its su[p.325]premacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy’s country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty.”

These conclusions follow not only from the usual necessities of war but as well from the Court’s doctrine that the Constitution is not automatically applicable in all territories acquired by the United States, the question turning upon whether Congress has made the area “incorporated” or “unincorporated” territory,1536 but in Reid v. Covert,1537 Justice Black in a plurality opinion of the Court asserted that wherever the United States acts it must do so only “in accordance with all the limitation imposed by the Constitution. . . . [C]onstitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home.”1538 The case, however, involved the trial of a United States citizen abroad and the language quoted was not subscribed to by a majority of the Court; thus, it must be regarded as a questionable rejection of the previous line of cases.1539


1518 Lichter v. United States, 334 U.S. 742, 779 (1948).
1519 For an extensive consideration of this subject in the context of the President’s redelegation of it, see N. Grundstein, Presidential Delegation of Authority in Wartime (Pittsburgh: 1961).
1520 In the Selective Draft Law Cases, 245 U.S. 366, 389 (1918), the objection was dismissed without discussion. The issue was decided by reference to peacetime precedents in Yakus v. United States, 321 U.S. 414, 424 (1944).
1521 21 Wall. (88 U.S.) 73 (1875).
1522 Id., 96–97. Cf. United States v. Chemical Foundation, 272 U.S. 1 (1926).
1523 320 U.S. 81 (1943).
1524 Id., 91–92, 104.
1525 Id., 104.
1526 334 U.S. 742 (1948).
1527 Id., 778–779, 782.
1528 Id., 778–783.
1529 4 Wall. (71 U.S.) 2 (1866).
1530 Id., 127.
1531 Id., 132, 138.
1532 Id., 121, 139–142.
1533 327 U.S. 304 (1946).
1534 New Orleans v. The Steamship Co., 20 Wall. (87 U.S.) 387 (1874); Santiago v. Nogueras, 214 U.S. 260 (1909); Madsen v. Kinsella, 343 U.S. 341 (1952).
1535 100 U.S. 158, 170 (1880).
1536 De Lima v. Bidwell, 182 U.S. 1 (1901); Dooley v. United States, 182 U.S. 222 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138 (1904).
1537 354 U.S. 1 (1957).
1538 Id., 6, 7.
1539 For a comprehensive treatment, preceding Reid v. Covert, of the matter in the context of the post–War war crimes trials, see Fairman, Some New Problems of the Constitution Following the Flag, 1Stan. L. Rev.587 (1949).
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