CRS Annotated Constitution

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Enemy Aliens.—The Alien Enemy Act of 1798 authorized the President to deport any alien or to license him to reside within the United States at any place to be designated by the President.1561 Though critical of the measure, many persons conceded its con[p.329]stitutionality on the theory that Congress’ power to declare war carried with it the power to treat the citizens of a foreign power against which war has been declared as enemies entitled to summary justice.1562 A similar statute was enacted during World War I1563 and was held valid in Ludecke v. Watkins.1564

During World War II, the Court unanimously upheld the power of the President to order to trial before a military tribunal German saboteurs captured within this Country.1565 Enemy combatants, said Chief Justice Stone, who without uniforms come secretly through the lines during time of war, for the purpose of committing hostile acts, are not entitled to the status of prisoners of war but are unlawful combatants punishable by military tribunals.

Eminent Domain.—An often–cited dictum uttered shortly after the Mexican War asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of the enemy, or for that taken for public use.1566 In United States v. Russell,1567 decided following the Civil War, a similar conclusion was based squarely on the Fifth Amendment, although the case did not necessarily involve the point. Finally, in United States v. Pacific Railroad,1568 also a Civil War case, the Court held that the United States was not responsible for the injury or destruction of private property by military operations, but added that it did not have in mind claims for property of loyal citizens taken for the use of the national forces. “In such cases,” the Court said, “it has been the practice of the government to make compensation for the property taken. . . . although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clauses.”1569

Meantime, however, in 1874, a committee of the House of Representatives, in an elaborate report on war claims growing out of the Civil War, had voiced the opinion that the Fifth Amendment embodies the distinction between a taking of property in the course of military operations or other urgent military necessity, and other takings for war purposes, and required compensation of owners in the latter class of cases.1570 In determining what constitutes just compensation for property requisitioned for war purposes during[p.330]World War II, the Court has assumed that the Fifth Amendment is applicable to such takings.1571 But as to property seized and destroyed to prevent its use by the enemy, it has relied on the principle enunciated in United States v. Pacific Railroad as justification for the conclusion that owners thereof are not entitled to compensation.1572

Rent and Price Controls.—Even at a time when the Court was utilizing substantive due process to void economic regulations, it generally sustained such regulations in wartime. Thus, shortly following the end of World War I, it sustained, by a narrow margin, a rent control law for the District of Columbia, which not only limited permissible rent increases but also permitted existing tenants to continue in occupancy provided they paid rent and observed other stipulated conditions.1573 Justice Holmes for the majority conceded in effect that in the absence of a war emergency the legislation might transcend constitutional limitations1574 but noted that “a public exigency will justify the legislature in restricting property rights in land to a certain extent without compensation.”1575

During World War II and thereafter, economic controls were uniformly sustained.1576 An apartment house owner who complained that he was not allowed a “fair return” on the property was dismissed with the observation that “a nation which can demand the lives of its men and women in the waging of . . . war is under no constitutional necessity of providing a system of price control . . . which will assure each landlord a ‘fair return’ on his property.”1577 The Court also held that rental ceilings could be established without a prior hearing when the exigencies of national security precluded the delay which would ensue.1578


But in another World War I case, the Court struck down a statute which penalized the making of “any unjust or unreasonable rate or charge in handling . . . any necessaries”1579 as repugnant to the Fifth and Sixth Amendments in that it was so vague and indefinite that it denied due process and failed to give adequate notice of what acts would violate it.1580

Cls. 15 and 16—Power over the Militia

Clause 15. The Congress shall have Power * * * To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Clause 16. The Congress shall have Power * * * To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militi according to the discipline prescribed by Congress.


Calling Out the Militia

The States as well as Congress may prescribe penalties for failure to obey the President’s call of the militia. They also have a concurrent power to aid the National Government by calls under their own authority, and in emergencies may use the militia to put down armed insurrection.1581 The Federal Government may call out the militia in case of civil war; its authority to suppress rebellion is found in the power to suppress insurrection and to carry on war.1582 The act of February 28, 1795,1583 which delegated to the President the power to call out the militia, was held constitutional.1584 A militiaman who refused to obey such a call was not “employed in the service of the United States so as to be subject[p.332]to the article of war,” but was liable to be tried for disobedience of the act of 1795.1585


1561 1 Stat. 577 (1798).
1562 6 Writing of James Madison, G. Hunt ed. (New York: 1904), 360–361.
1563 40 Stat. 531 (1918), 50 U.S.C. Sec. 21 .
1564 335 U.S. 160 (1948).
1565 Ex parte Quirin, 317 U.S. 1 (1942).
1566 Mitchell v. Harmony, 13 How. (54 U.S.) 115, 134 (1852).
1567 13 Wall. (80 U.S.) 623, 627 (1871).
1568 120 U.S. 227 (1887).
1569 Id., 239.
1570 H.R. Rept. No. 262, 43d Cong., 1st Sess. (1874), 39–40.
1571 United States v. Commodities Trading Corp., 339 U.S. 121 (1950); United States v. Toronto Nav. Co., 338 U.S. 396 (1949); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949); United States v. Cors, 337 U.S. 325 (1949); United States v. Felin & Co., 334 U.S. 624 (1948); United States v. Petty Motor Co., 327 U.S. 372 (1946); United States v. General Motors Corp., 323 U.S. 373 (1945).
1572 United States v. Caltex, Inc., 344 U.S. 149, 154 (1952). Justices Douglas and Black dissented.
1573 Block v. Hirsh, 256 U.S. 135 (1921).
1574 But quaere in the light of Nebbia v. New York, 291 U.S. 502 (1934), Olsen v. Nebraska ex rel. Western Reference and Bond Association, 313 U.S. 236 (1941), and their progeny.
1575 Block v. Hirsh, 256 U.S. 135, 156 (1921).
1576 Yakus v. United States, 321 U.S. 414 (1944); Bowles v. Willingham, 321 U.S. 503 (1944); Lockerty v. Phillips, 319 U.S. 182 (1943); Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947); Lichter v. United States, 334 U.S. 742 (1948).
1577 Bowles v. Willingham, 321 U.S. 503, 519 (1944).
1578 Id., 521. The Court stressed, however, that Congress had provided for judicial review after the regulations and orders were made effective.
1579 Act of October 22, 1919, 2, 41 Stat. 297 .
1580 United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921).
1581 Moore v. Houston, 3 S. & R. (Pa.) 169 (1817), affirmed, Houston v. Moore, 5 Wheat. (18 U.S.) 1 (1820).
1582 Texas v. White, 7 Wall. (74 U.S.) 700 (1869); Tyler v. Defrees, 11 Wall. (78 U.S.) 331 (1871).
1583 1 Stat. 424 (1795), 10 U.S.C. Sec. 332 .
1584 Martin v. Mott, 12 Wheat. (25 U.S.) 19, 32 (1827).
1585 Houston v. Moore, 5 Wheat. (18 U.S.) 1 (1820); Martin v. Mott, 12 Wheat. (25 U.S.) 19 (1827).
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