The Prize Cases and the Commander-in-Chief Clause

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Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The basis for a broader conception of the role of Commander in Chief was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws.1 In his famous message to Congress on July 4, 1861,2 Lincoln advanced the claim that the “war power” was his for the purpose of suppressing rebellion, and in the Prize Cases3 of 1863 a divided Court sustained this theory. The immediate issue was the validity of the blockade of the Southern ports that the President had established following the attack on Fort Sumter.4 The argument was advanced that, in order for a blockade to be valid, it must be established during an incident of a “public war” validly declared, and that only Congress could, by virtue of its power “to declare war,” constitutionally impart to a military situation this character and scope.5 Speaking for the majority of the Court, Justice Grier answered:

If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral.'6

To support this principle with historical precedent, Justice Grier explained that the battles of Palo Alto and Resaca de la Palma had been fought before the enactment of the Act of Congress of May 13, 1846, “which recognized ‘a state of war as existing by the act of the Republic of Mexico.’” 7 Justice Grier stated, “This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress.” 8

The Court might have rested its opinion wholly on the President’s authorities under statute to suppress insurrections and repel invasions,9 coupled with Congress’s ratification of the President’s actions,10 but it instead emphasized executive power and duty:

The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact . . . .

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. ‘He must determine what degree of force the crisis demands.’ The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.11

In brief, the powers that may be claimed for the President under the Commander-in-Chief Clause at a time of widespread insurrection were equated with his powers under the clause at a time when the United States is engaged in a formally declared foreign war.12 No attention was given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly had,13 with the exception of his suspension of habeas corpus, a power that many attributed to the President in the situation then existing, by virtue of his duty to take care that the laws be faithfully executed.14 On the other hand, where Lincoln’s proclamation suspending habeas corpus varied from legislation later enacted to ratify it, the Court looked to the statute15 rather than to the proclamation16 to determine the breadth of its application in the case of Ex parte Milligan.17

In a partial concurrence to the majority’s decision in Milligan, Chief Justice Chase described the allocation of war powers as follows:

The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President . . . .18

The Chief Justice described the Commander-in-Chief power as entailing “the command of the forces and the conduct of campaigns,” 19 but nevertheless agreed that military trials of civilians accused of violating the law of war in Union states were invalid without congressional approval, despite the government’s assertion that the “[Commander in Chief’s] power to make an effectual use of his forces [must include the] power to arrest and punish one who arms men to join the enemy in the field against him.” 20

1: 1 Stat. 424 (1795); 2 Stat. 443 (1807) (codified at 10 U.S.C. §§ 251–254). See also Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32–33 (1827) (asserting the finality of the President’s judgment of the existence of a state of facts requiring his exercise of the powers conferred by the act of 1795).
2: 7 Messages and Papers of the Presidents 3221, 3224 (1897) ( “So viewing the issue, no choice was left but to call out the war power of the Government and so to resist force employed for its destruction by force for its preservation.” ). Later in the address, President Lincoln submitted: “Recurring to the action of the Government, it may be stated that at first a call was made for 75,000 militia, and rapidly following this a proclamation was issued for closing the ports of the insurrectionary districts by proceedings in the nature of blockade. So far all was believed to be strictly legal. At this point the insurrectionists announced their purpose to enter upon the practice of privateering.”
“Other calls were made for volunteers to serve three years unless sooner discharged, and also for large additions to the Regular Army and Navy. These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress.” Id. at 3225.
3: 67 U.S. (2 Black) 635 (1863).
4: Id. at 665.
5: Id. at 644–45 (argument).
6: Id. at 668–70.
7: Id. at 668.
8: Id.
9: Id. at 668.
10: 67 U.S. (2 Black) at 670–71 (taking note of various statutes and stating, “Without admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, . . . this ratification has operated to perfectly cure the defect.” ).
11: Id. at 669–70.
12: See generally, Edward Corwin, Total War and the Constitution (1946).
13: 12 Stat. 326 (1861).
14: J. G. Randall, Constitutional Problems Under Lincoln 118–139 (rev. ed. 1951).
15: Act of Mar. 3, 1863, 12 Stat. 755 (authorizing the suspension of habeas corpus, but with limitations in Union states to those held as prisoners of war; all others were to be indicted or freed.)
16: Proclamation of Sept. 15, 1863, 13 Stat. 734 (suspending habeas corpus with respect to those in federal custody as military offenders or “as prisoners of war, spies, or aiders and abettors of the enemy” ).
17: Ex parte Milligan, 71 U.S. (4 Wall.) 2, 115–16 (1866).
18: Id. at 139 (Chase, C.J., concurring and dissenting in part).
19: Id. at 139–40 ( “Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity . . . ” ).
20: Id. at 17 (government argument).