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; . . .

Historically, many of the most prominent disputes over the Constitution’s allocation of war powers centered on the federal government’s war powers in their collective capacity and not the division of powers between the Congress and the President.1 In the course of examining those constitutional questions, the Supreme Court has occasionally discussed the Constitution’s division of war powers, but it has never decided a case that required it to resolve directly the modern interbranch debate over the power to initiate military action. Accordingly, the following essays examine the Supreme Court’s jurisprudence related to congressional war powers and highlights cases that addressed the interbranch debate over the power to initiate military action. Because courts have been reluctant to resolve interbranch disputes in this area, these essays also discuss the executive and legislative branch’s practices that contribute to the constitutional understanding of these issues.2

Footnotes

1

See, e.g., The Prize Cases, 67 U.S. 635 (1812); Selective Draft Act Cases, 245 U.S. 366 (1918).

2

For background on reference to historical practices as a method of constitutional interpretation, see .