Civil War, and Executive and Legislative Powers

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Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

The Civil War prompted a number of Supreme Court cases concerning the breadth of the federal government’s war powers. In Hamilton v. Dillin, the Supreme Court addressed a challenge to licensing fees the executive branch imposed under a Civil War-era statute that authorized trade restrictions on commercial exchanges with states declared to be in an insurrection.1

88 US. (21 Wall.) 73, 86–87 (1874)

(discussing Act of July 13, 1861 § 5, 12 Stat. 257). The Court stated “there can be no question” that the executive branch’s fees were “competent to the war power of the United States government to impose.” 2 According to Hamilton, the U.S. government possessed certain inherent rights to pursue the war effort, and this “war power vested in the government . . . without any specific mention of it in the Constitution.” 3 The Court then discussed separation of war powers between the legislative and executive branch, stating that the power to declare war is confided in Congress, but the President “is constitutionally invested with the entire charge of hostile operations . . . .” 4 Ultimately, the Court concluded that it was not necessary to resolve any acute separation of powers dispute because the executive branch’s actions were statutorily authorized.5

The Supreme Court also upheld the constitutionality of other Civil War-era economic measures as valid exercises of congressional power. In Miller v. United States, the Supreme Court deemed constitutional a set of statutes authorizing seizure and confiscation of Confederate property without a jury trial, reasoning that “the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.” 6

Miller v. United States,

78 U.S. (11 Wall.) 268, 304–05 (1870)

. The Court also upheld the 1862 Legal Tender Act,7 in which Congress authorized production of paper currency as a part of a response to the economic crisis caused by the Civil War.8

Although the Supreme Court upheld government action in several Civil War-era cases, not every exercise of the Union war effort withstood judicial scrutiny. In Ex parte Milligan, the Supreme Court addressed whether an Indiana man could be tried in a military commission created by presidential order, rather than a federal court, for conspiring to commit acts of sabotage and fomenting rebellion in states under Union control.9

71 U.S. (4 Wall.) 2, 107–09 (1866)

. For background on constitutional issues arising from military commissions, see . For additional discussion of

Milligan

and its implication, see and Jennifer K. Elsea, Cong. Rsch. Serv., R42337, Detention of U.S. Persons as Enemy Belligerents 15 (2014), >https://crsreports.congress.gov/product/pdf/R/R42337. The accused argued that he had been denied his constitutional rights to habeas corpus,10 trial before jury,11 and to have his case heard in a judicial tribunal created under Article III of the Constitution.12 The United States responded that the President possessed broad war-time emergency powers justifying trial in a military tribunal, even going so far as to argue that “[d]uring the war [the President’s] powers must be without limit.” 13

The Supreme Court rejected the United States’ far-reaching assertion and held that the accused could not constitutionally be tried in a military commission, in part, because federal courts were not obstructed from operating in Indiana at the time of his trial.14

Ex parte Milligan,

71 U.S. (4 Wall.) at 121

. The Milligan Court also held that, even if Congress had passed legislation authorizing the military commission in question, Congress had no constitutional power to authorize trials of American civilians in areas where federal courts are open and unobstructed.15

Milligan marked a departure from an earlier Civil War case, Ex parte Vallandigham, in which the Supreme Court concluded that it did not have jurisdiction to resolve an Ohio civilian’s challenge to conviction in a military commission.16

Ex parte Vallandigham,

68 U.S. 243, 251–52 (1863)

. In that case, a military commission had convicted Clement Vallandigham, a former Member of Congress and vocal opponent of Union participation in the Civil War, of violating a prohibition on “declaring sympathies for the enemy.” 17 President Lincoln commuted Vallandigham’s sentence and directed that he be sent beyond Union lines into Confederate-held territory.18 As a result of the transfer, Vallandigham presented his case in a different procedural posture than in Milligan, contributing to the differences in result.19

1: 88 US. (21 Wall.) 73, 86–87 (1874)

(discussing Act of July 13, 1861 § 5, 12 Stat. 257).
2: Id.
3: Id. at 87
.
4: Id.
5: See
id. at 88
. ( “Whether, in the absence of Congressional action, the power of permitting partial intercourse with a public enemy may or may not be exercised by the President alone . . . is not now necessary to decide, although it would seem that little doubt could be raised on the subject” ).
6: Miller v. United States,
78 U.S. (11 Wall.) 268, 304–05 (1870)

.
7: 12 Stat. 345 (1862).
8: Legal Tender Cases,
79 U.S. (12 Wall.) 457, 540–41 (1870)

.
9: 71 U.S. (4 Wall.) 2, 107–09 (1866)

. For background on constitutional issues arising from military commissions, see . For additional discussion of
Milligan
and its implication, see and Jennifer K. Elsea, Cong. Rsch. Serv., R42337, Detention of U.S. Persons as Enemy Belligerents 15 (2014), >https://crsreports.congress.gov/product/pdf/R/R42337.
10: See .
11: See .
12: For background on the relationship between military tribunals created under Article I of the Constitution and federal courts created under Article III, see .
13: Argument in the Supreme Court of the United States on the Side of the United States,
Ex parte Milligan,
4 Wall

. (reporter’s digest), reprinted in The Milligan Case 90 (Da Capo Press ed. 1970). See also Curtis A. Bradley, The Story of Ex Parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization, in Presidential Power Stories 109—11 (Christopher H. Schroeder & Curtis A. Bradley, eds., 2009) (discussing executive branch arguments in Milligan).
14: See
Ex parte Milligan,
71 U.S. (4 Wall.) at 121

.
15: See
id. at 122
. Chief Justice Chase authored a concurring opinion, joined by three other Justices, which agreed that the detention was not lawful under existing statutory law, but disagreed with the majority that Congress lacked the constitutional power to authorize the commission, had it chosen to do so. See
id. at 140
( “We cannot doubt that, in such a time of public danger, Congress had power, under the Constitution, to provide for the organization of a military commission, and for trial by that commission of persons engaged in this conspiracy.” ). See also An Act Relating to Habeas Corpus and Regulating Judicial Proceedings in Certain Cases, 12 Stat. 755 (1863). Chief Justice Chase’s concurring opinion also elaborated on his view of the distinction between congressional and executive war powers, discussed in .
16: Ex parte Vallandigham,
68 U.S. 243, 251–52 (1863)

.
17: Id. at 244
.
18: Order of the President to Major-General Burnside (May 19, 1863), reprinted in The Trial of Hon. Clement L. Vallandigham by a Military Commission 34 (Cincinnati, Rickey & Carroll 1863).
19: Whereas the accused in
Milligan
sought a writ of habeas corpus challenging the lawfulness of federal custody, Vallandigham was no longer in federal custody after his transfer to Confederate territory. Vallandigham therefore sought to appeal the military commission’s verdict through a petition for a writ of certiorari, which the Supreme Court denied on jurisdictional grounds. Compare
Ex parte Vallandigham,
68 U.S. at 254

, with
Ex parte Milligan,
71 U.S. (4 Wall.) at 69

.