World War II and the Use of War 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 attacks at Pearl Harbor led the United States to declare war against Japan on December 8, 1941.1 Three days later, the United States declared war on Germany in response to Germany’s declaration against the United States.2 Congress later declared war against Bulgaria, Hungary, and Rumania (now Romania) in June 19423 after President Franklin D. Roosevelt determined they had become “instruments of Hitler.” 4 Like the declarations against Germany and Austria-Hungary in World War I, the declarations in the Second World War authorized the President to use the United States’ military forces and “all of the resources of the country” to bring the conflict to a successful termination.5 The federal government’s exercise of this “total war” authority during World War II would raise questions about the extent of legislative and executive branch authority during wartime.

Before the United States entered the Second World War, French and British leaders had asked the Roosevelt Administration to declare war against Germany and to provide war material to support their defense, but the President responded that “[o]nly the Congress can make those commitments.” 6 Despite that reluctance, the Roosevelt Administration later transferred “over-age ships and obsolescent military materials” to Great Britain in exchange for long-term leases of British air and naval bases in what became known as the “Destroyers for Bases” agreement.7

Acquisition of Naval & Air Bases in Exch. for over-Age Destroyers,

39 U.S. Op. Atty. Gen. 484, 485 (1940)

. The executive branch had previously interpreted a trade statute designed to ensure United States’ neutrality to prohibit transfer of vessels requested by Great Britain.8 However, President Roosevelt’s Attorney General (and later Supreme Court Justice) Robert Jackson concluded that the President could complete the destroyer-for-bases exchange based on a mix of statutory authority and the President’s power to conduct “foreign relations which the Constitution vests in the President as a part of the Executive function.” 9

The United States’ eventual entry into the Second World War generated interbranch debate over President Roosevelt’s power to manage independently aspects of the domestic economy.10 In particular, President Roosevelt sought to modify the Emergency Price Control Act of 1942, which he believed impeded his ability to control domestic inflation that interfered with the war effort.11 When Congress initially did not make the requested legislative changes, the President claimed constitutional authority to take measures he viewed as necessary for the war effort, and he publicly threatened to impose his own inflation stabilization regime.12 Roosevelt’s suggestion that the President could override economic legislation was never tested in court because Congress enacted legislation giving the President new price and wage stabilization authority,13 but the Supreme Court later rejected a similar view that President Truman advanced during the Korean War.14

Other aspects o f the government’s action in support of its World War II efforts did reach the Supreme Court in the 1940s.15 In Lichter v. United States, the Court upheld the constitutionality of the Renegotiation Act, which allowed the government to renegotiate war supply contracts and to recoup excessive process.16

Lichter v. United States,

334 U.S. 742, 745–51 (1948)

. For additional analysis of Lichter, see [cross-reference to The Army Clause, Congressional Power, Conscription, and War Materials]. “In total war[,]” the Court reasoned, “it is necessary that a civilian make sacrifices of his property and profits with at least the same fortitude as that with which a drafted soldier makes his traditional sacrifices of comfort, security and life itself.” 17 The Court also elaborated on the Constitution’s overall war powers scheme, explaining that all war powers are derived from the Constitution, and that the Constitution’s mandates apply equally during war and war peace.18 Despite acknowledging these limits, the Court continued, the United States’ war power should be interpreted as “an effective power to wage the war successfully” and to fulfill the purposes of the Constitution’s Preamble to, among other things, provide for the common defense.19

After hostilities ended in World War II, Congress continued the draft and certain wartime economic measures, leading to litigation over whether the measures were lawful when active conflict was over.20

Stewart v. Kahn,

78 U.S. 493, 507 (1870)

( “[The war power] 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.” );

Hamilton v. Ky. Distilleries & Warehouse Co.,

251 U.S. 146, 161–63 (1919)

(upholding prohibition legislation enacted after the World War I armistice due to its benefits for manpower during demobilization). In Ludecke v. Watkins, the Court upheld the President’s continued use of statutory authority authorizing removing of alien enemies deemed to be dangerous to the public, reasoning that “[w]ar does not cease with a cease-fire order, and power to be exercised by the President . . . is a process which begins when war is declared but is not exhausted when the shooting stops.” 21 In Woods v. Cloyd W. Miller Co., the Court held that continued rent controls were a constitutional exercise of Congress’s war powers because construction shortages and U.S. soldiers returning home after demobilization caused a housing deficit. 22 The Woods Court also cautioned, however, that continued use of war powers “in days of peace to treat all the wounds which war inflicts on our society . . . may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well.” 23

1: Act of December 8, 1941, Pub. L. No. 77-328, 55 Stat. 795.
2: Act of December 11, 1941, Pub. L. No. 77-331, 55 Stat. 796.
3: Act of June 5, 1942, Pub. L. No. 77-563, 56 Stat. 307 (Bulgaria); Act of June 5, 1942, Pub. L. No. 77-564, 56 Stat. 307 (Hungary); Act of June 5, 1942, Pub. L. No. 77-565, 56 Stat. 307 (Rumania).
4: Message to Congress on a State of War Between the United States and Hungary, Rumania, and Bulgaria, 88 Cong. 4787 (1942).
5: See sources cited supra notes 1–3.
6: Reply of President Roosevelt to the Message of June 14 of Premier Reynaud of France, 51 Dep’t. St. Bull. 639 (1940). See also David Reynolds, From Munich to Pearl Harbor, Roosevelt’s America and the Origins of the Second World War 78 (2001).
7: Acquisition of Naval & Air Bases in Exch. for over-Age Destroyers,
39 U.S. Op. Atty. Gen. 484, 485 (1940)

.
8: See Neutrality Act of 1937, 50 Stat. 121. See also David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb - A Constitutional History, 121 Harv. L. Rev. 941, 1042–45 (2008) (discussing internal executive branch opinions on the Neutrality Act of 1937).
9: Acquisition of Naval & Air Bases in Exch. for over-Age Destroyers,
39 U.S. Op. Atty. Gen at 486

(citing
United States v. Curtiss-Wright Exp. Corp.,
299 U.S. 304, 319 (1936)

). For background on the President’s foreign affairs authority, see .
10: See, e.g., Edward Corwin, Total War and the Constitution 47–70 (1947).
11: Message from the President of the United States Transmitting a Recommendation that Congress Pass Legislation Placing a Floor under Prices of Farm Products, in Stabilizing the Cost of Living, Hearings before the S. Comm. on Banking and Currency, 77th Cong. 1 (1942).
12: 88 Cong. Rec. 7044 (1942). While the President’s message to Congress appeared to be premised solely on his constitutional authority, recent commentators have observed that the executive branch had prepared a statutory argument for presidential action that was not made public. See David Barron, Waging War 267–77 (2016).
13: Stabilization Act of 1942, Pub. L. No. 77-729, 56 Stat. 765 (1942).
14: See .
15: Several elements of the Supreme Court’s World War II-era jurisprudence are discussed in essays on the Commander-in-Chief Clause. See ; ; ; .
16: Lichter v. United States,
334 U.S. 742, 745–51 (1948)

. For additional analysis of Lichter, see [cross-reference to The Army Clause, Congressional Power, Conscription, and War Materials].
17: Lichter,
334 U.S. at 754

.
18: Id. at 782
.
19: See
id.
For background on the Preamble, see .
20: Similar issues arose after the end of the Civil War and the First World War. See
Stewart v. Kahn,
78 U.S. 493, 507 (1870)

( “[The war power] 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.” );
Hamilton v. Ky. Distilleries & Warehouse Co.,
251 U.S. 146, 161–63 (1919)

(upholding prohibition legislation enacted after the World War I armistice due to its benefits for manpower during demobilization).
21: 335 U.S. 160, 167 (1948)

.
22: 333 U.S. 138, 142–32 (1948)

. See also
Ludecke,
335 U.S. at 167

( “War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the [Alien Enemy] Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops.” ).
23: Woods,
333 U.S. at 143–44

. For background on the Ninth and Tenth Amendments, see and .