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; . . .

After the South Carolina militia fired on the United States army garrison at Fort Sumter in April of 1861, Congress did not formally declare war on the Confederate states because of the internal nature of the conflict, because Congress was not session at the conflict’s onset, and because the war disrupted Congress’s normal functioning.1 Instead, President Lincoln took the initiative by issuing a set of proclamations in the spring of 1861 calling forth the militia, instituting a naval blockade of ports in states that had seceded from the Union, and calling for volunteers and enlistment in the military.2 When Congress returned in session later that summer, it passed legislation authorizing the President to declare the inhabitants of rebelling states to be in a “state of insurrection” 3 and stating that Congress “approved and in all respects legalized” the President’s proclamations.4

The absence of a declaration of war led to some dispute over the legality of the Union military’s actions. After Union forces seized neutral ships and their cargo to enforce the naval blockade of Confederate ports, a group of ship-owners filed suit challenging the seizures’ lawfulness.5 A consolidated set of these challenges, known as The Prize Cases, reached the Supreme Court in 1863 in the midst of active conflict.6 The claimants argued that the President had no authority to order their ships’ seizure without a declaration of war, especially during the period before Congress ratified the President’s proclamations.7 The Supreme Court rejected this formalistic interpretation of the Constitution and reasoned that the primary issue was whether factual circumstances demonstrated that “a state of war existed” justifying use of force, not whether Congress had made a legislative pronouncement of war.8

Civil wars are “never solemnly declared[,]” the Supreme Court stated in The Prize Cases, and Congress has no constitutional power to declare war against a state of the union.9 Instead, civil wars arise when rebelling forces grow in such a size and power that they are able to hold territory, declare independence, and organize their own armed forces.10 The Supreme Court reasoned that it must defer to President Lincoln’s conclusion that the Confederacy rose beyond an insurrection to a state of civil war.11

Having determined that a state of war existed, the Supreme Court next addressed whether that state empowered the President to order and enforce a naval blockade. The Court observed that the President “has no power to initiate or declare a war[,]” but if war is brought to the United States by invasion or rebellion, the President is not merely “authorized but bound to resist force by force.” 12 The President does not initiate the war, the Supreme Court explained, “but is bound to accept the challenge without waiting for special legislative authority.” 13 Based on this reasoning, the Court held that the President had authority for the blockade under the Constitution and existing statutes.14

Footnotes

1

See, e.g., Hon. William O. Douglas, The Grand Design of the Constitution, 52 Gonz. L. Rev. 373, 384 (2017); Thomas H. Lee & Michael D. Ramsey, The Story of the Prize Cases: Executive Action and Judicial Review in Wartime, in Presidential Power Stories 51, 56 (Christopher H. Schroeder & Curtis A. Bradley, eds., 2009).

2

See 7 Compilation of the Messages and Papers of the Presidents 3214–16 (James D. Richardson ed., 1897). See also Louis Fisher, Abraham Lincoln: Preserving the Union and the Constitution, 3 Alb. Gov’t L. Rev. 503, 520–21 (2010) (summarizing President Lincoln’s early Civil War proclamations).

3

Act of July 13, 1861 § 5, 12 Stat. 257.

4

Act of Aug. 6, 1841 § 3, 12 Stat. 326.

5

See The Prize Cases, 67 U.S. (2 Black) 635, 665 (1863).

6

Id.

7

See id. at 646–47 (reporter’s note).

8

Id. at 666.

9

Id. at 666, 668.

10

Id. at 667–67. But see Luther v. Borden, 48 U.S. (7 How.) 1, 71 (1849) ( “Nor is it foreign war alone that Congress is to declare, but ‘war,’—war of any kind existing legitimately or according to the law of nations.” ).

11

The Prize Cases, 67 U.S. (2 Black) 635, 670 (1863) ( “Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.” ).

12

Id. at 668.

13

Id.

14

See id. (citing statutes that authorized the President “to call[] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States” ).