ArtI.S8.C11.2 Scope of Congress's War Powers

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 Supreme Court has suggested the breadth of Congress’s “war powers” covers matters beyond the authorization of military and naval operations to support economic measures with impact on private citizens.1 For example, in McCulloch v. Maryland,2 Chief Justice John Marshall listed the power “to declare and conduct a war” as one of the “enumerated powers” from which the authority to charter the Bank of the United States was deduced.3

In Lichter v. United States,4 upholding the Renegotiation Act,5 which permitted the government to recoup excessive profits from defense contractors, the Court declared that:

In view of this power ‘To raise and support Armies,’ and the power granted in the same Article of the Constitution ‘to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers', the only question remaining is whether the Renegotiation Act was a law ‘necessary and proper for carrying into Execution’ the war powers of Congress and especially its power to support armies.6

In a footnote, the Court in Lichter listed the Preamble, the Necessary and Proper Clause, the provisions authorizing Congress to lay taxes and provide for the common defense, to declare war, and to provide and maintain a navy, together with the clause designating the President as Commander in Chief of the Army and Navy, as being “among the many other provisions implementing the Congress and the President with powers to meet the varied demands of war . . . .” 7 The Court in Lichter also compared the Renegotiation Act to the Selective Service Act, explaining that “[t]he authority of Congress to authorize each of them sprang from its war powers. Each was part of a national policy adopted in time of crisis in the conduct of total global warfare by a nation dedicated to the preservation, practice and development of the maximum measure of individual freedom consistent with the unity of effort essential to success.” 8 The Court asserted that “[b]oth Acts were a form of mobilization” and that “[t]he language of the Constitution authorizing such measures is broad rather than restrictive.” 9

The Court has stated that “[the war power] is not limited to victories in the field . . . [as] [i]t carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress.” 10 After World War II hostilities ended, Congress enacted the Housing and Rent Act to continue the controls begun in 1942,11 and continued the military draft.12 With the outbreak of the Korean War, legislation was enacted establishing general presidential control over the economy again,13 and by executive order the President created agencies to exercise the power.14 The Court continued to assume the existence of a state of wartime emergency prior to Korea, but with misgivings. In Woods v. Cloyd W. Miller Co.,15 the Court held that the new rent control law were constitutional on the ground that cessation of hostilities did not end the government’s war power, but that the power continued to remedy the evil arising out of the emergency. Yet as Justice William Douglas noted for the Court:

“We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well. There are no such implications in today’s decision.” 16

Justice Robert Jackson, concurring, explained that he found the war power “the most dangerous one to free government in the whole catalogue of powers” and cautioned that its exercise “be scrutinized with care.” 17 In Ludecke v. Watkins,18 four dissenting Justices were prepared to hold that the presumption in the statute under review of continued war with Germany was “a pure fiction” and not to be used. The majority in Ludecke held, however, that the delegated power of the President to remove enemy aliens during World War II continued after hostilities ended, determining that the termiation of “'[t]he state of war’ . . . is a political act.” 19

See. e.g., United States v. Macintosh, 283 U.S. 605, 622 (1931), ( “From its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law.” ) overruled on other grounds by Girouard v. United States, 328 U.S. 61, 66 (1946); Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 426 (1934) ( “[The] war power of the federal government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme co-operative effort to preserve the nation.” ); Jacob Ruppert, Inc. v. Caffey, 251 U.S. 264, 299–300 (1920) (upholding the Volstead Act prohibition on the manufacture and sale of non-intoxicating beer on the basis that “the implied war power over intoxicating liquors extends to the enactment of laws which will not merely prohibit the sale of intoxicating liquors but will effectually prevent their sale” ); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 507 (1870) ( “[T]he [war] power is not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress.” ). back
17 U.S. (4 Wheat.) 316 (1819). back
Id. at 407–08 ( “Although, among the enumerated powers of government, we do not find the word ‘bank’ or ‘incorporation,’ we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. . . . [I]t may with great reason be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution.” ). back
334 U.S. 742 (1948). back
Sixth Supplemental National Defense Appropriation Act § 403, 56 Stat. 226, 245–246 (1942) (as amended). back
334 U.S. at 757–58. back
Id. at 755 n.3. back
Id. at 754–55. back
Id. at 755. back
Stewart v. Kahn, 78 U.S. 493, 507 (1870); see also Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919). back
61 Stat. 193 (1947). back
62 Stat. 604 (1948). back
Defense Production Act of 1950, 64 Stat. 798. back
E.O. 10161, 15 Fed. Reg. 6105 (1950). back
333 U.S. 138 (1948). back
Id. at 143–44. back
Id. at 146–47; but see Chastelton Corp. v. Sinclair, 265 U.S. 543, 547–48 (1924) ( “[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. . . . A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed. . . . [The Court] is open to inquire whether the exigency still existed upon which the continued operation of the law depended.” ). back
335 U.S. 160, 175 (1948). back
Id. at 168–69 (explaining that “'[t]he state of war’ may be terminated by treaty or legislation or Presidential proclamation” ). back