War

War When the nation is at war, the dominant pattern involving the use of governmental power is one of presidential initiative followed by congressional acquiescence or approval. Sometimes advance congressional approval of the use of troops is sought and received, but frequently that has not been the case.

In its own realm, the Supreme Court often has difficulty deciding certain issues when doing so might have negative consequences for the war's conduct. In a few leading decisions in which the Supreme Court has ruled on the legality of governmental conduct during war time, two main themes have emerged. First, the Court has tended not to interfere with major policies of the political branches of government, even when constitutional issues have been presented. Second, in selected instances the Court has laid down limits, although these often have been carefully drawn after the fact. These tendencies have prompted the comment that, in the crucible of war, constitutional principles can become “highly malleable” (Corwin, 1984, p. 271).

Civil War

The dominant pattern became clear in the early days of the Civil War, when President Abraham Lincoln took dramatic action during the ten weeks between the fall of Fort Sumter and the convening of Congress in special session on 4 July 1861. Among other things, Lincoln consolidated state militias into one force, summoned volunteers for active service, increased the size of the army and navy without legislative authorization, paid money from the Treasury without an appropriation, closed the Post Office to “treasonable correspondence,” and suspended the writ of habeas corpus. Congress later approved only some of these actions.

In the Prize Cases (1863), the Court rebuffed a challenge to President Lincoln's blockade of southern ports, which led to the capture of ships as prizes of war. The Court, divided 5 to 4, upheld Lincoln's action as a defensive use of his power as commander in chief, even though there was no declaration of war or other legislative authorization.

Ex parte Milligan (1866) resulted from Lincoln's suspension of the writ of habeas corpus. Lincoln acted without advance legislative approval, although Congress passed a statute in 1863 retroactively authorizing the writ's suspension. During the war, military authorities arrested persons suspected of treason or espionage, placed them in prison, and tried them before military tribunals. If convicted, they were unable to petition a civilian court for a writ of habeas corpus. This scenario led to conflict between the president and Chief Justice Roger B. Taney, who questioned the president's power to suspend the writ in Ex parte Merryman (1861). The chief justice, acting as a circuit judge in Baltimore, ordered a prisoner's release. The local military commander refused, and President Lincoln continued to direct suspension of the writ. Merryman reaffirmed the practical limits of a justice's authority.

In Milligan, the Court reviewed the legality of trying civilians before military tribunals. It ruled that so long as regular courts are open and functioning, civilians must be tried there, where they receive procedural protections such as trial by jury. Milligan's apparently bold holding should be considered in light of the fact that the Court acted after the war was over and hostilities had ceased. The same happened in Duncan v. Kahanamoku (1946), which after World War II reaffirmed Milligan.

World War I

The dominant pattern was repeated during World War I, when President Woodrow Wilson closed German wireless stations and created a host of administrative boards before the declaration of war. Numerous statutes also delegated broad authority to the president during World War I, of which a few were challenged in court. The Court in 1918 upheld the Selective Service Act in Arver v. United States (see Selective Draft Law Cases), and in 1919 it sustained a prohibition statute in Hamilton v. Kentucky Distilleries & Warehouse Co.

After World War I, the Court failed to protect freedom of speech when prosecutions were brought under laws that attempted to control expression (see Speech and the Press; State Sedition Laws; Subversion). In Schenck v. United States (1919), defendants were convicted under the 1917 Espionage Act of conspiring to cause and attempting to cause insubordination in the armed forces as well as obstructing the recruitment and enlistment of members of the armed services during war with Germany. They had printed and circulated to men accepted for military service documents criticizing the draft and calling on them to assert their rights. The Court, in an opinion by Justice Oliver Wendell Holmes, affirmed the convictions. In his opinion, Justice Holmes wrote, “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight.” In another opinion by Justice Holmes, Debs v. United States (1919), the Court affirmed another conviction under the Espionage Act. Justice Holmes finally dissented on behalf of the principle of freedom of speech in Abrams v. United States (1919), marking the way for the development of First Amendment doctrine. In Brandenburg v. Ohio (1969), the Supreme Court embraced the modern test that advocacy of illegality is protected speech unless such advocacy is directed at inciting or producing imminent lawless action and is likely to incite or produce such action.

World War II

During World War II, the dominant pattern occurred yet again. Before America's entry into the war in December 1941, President Franklin D. Roosevelt agreed with Britain to exchange overage destroyers for leases of British ports in the Caribbean. The Lend Lease Act of 1941 gave the president authority to order or procure articles of war for transfer to any country that the president deemed vital to the nation's defense. Roosevelt also created several presidential offices, and he exercised considerable control over labor relations (see Presidential Emergency Powers).

The Emergency Price Control Act of 1942 broadly authorized the Office of Price Administration (OPA) to regulate consumer prices. The Supreme Court upheld this delegation of power in Yakus v. United States (1944). The Court also upheld the sanctions power of the OPA in Steuart & Bros. v. Bowles (1944), which dealt with the claim of a fuel‐oil dealer charged with violating an OPA order. Congress had not enacted the penalty provision under which the OPA proceeded against the retailer, but the Court nonetheless held that the executive had authority to penalize suppliers for violating rules on fuel‐oil distribution.

The Court upheld other economic controls during World War II. These included a statute authorizing recovery of excess profits under the Renegotiation Act (Lichter v. United States, 1948) as well as rent controls (Bowles v. Willingham, 1944). In Woods v. Miller Co. (1948), the Court sustained the continuation of rent controls after the war on the theory that they were necessary to cope with conditions caused by the war.

Civil liberties came to the forefront during World War II in decisions in which the Court—as in earlier conflicts—tended to defer to executive determinations. A key action was President Roosevelt's executive order giving military officials the legal authority to exclude persons from designated areas on the west coast in order to protect against sabotage or espionage. Under the order, the War Relocation Authority subjected persons of Japanese ancestry from designated areas in the West to a curfew, excluded them from their homes, detained them in relocation centers, and evacuated them to locations in California, Idaho, Utah, Arizona, Wyoming, Colorado, and Arkansas. Roughly 112,000 persons, of whom over 65,000 were U.S. citizens, were involuntarily removed from their homes by the end of 1942.

In Hirabayashi v. United States (1943), the Court upheld the curfew restriction. The Court relied on the president's power as commander in chief of the armed forces, and noted that Congress had enacted a statute ratifying the president's initial order. In Korematsu v. United States (1944), the Court determined that the exclusion program did not unconstitutionally burden persons of Japanese ancestry because of their race. Three justices dissented, including Justice Frank Murphy, who concluded that the exclusion program reflected racism. In subsequent years, the Korematsu decision came under sharp criticism. Korematsu's conviction itself was set aside after a special court hearing in 1984. In the 1980s, Congress enacted legislation providing compensation to survivors who had suffered from the exclusion program.

Korea

The first large‐scale conflict fought without a declaration of war involved Korea (1950–1953). In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court struck down President Harry S. Truman's order seizing the steel mills to prevent a strike that could lead to a steel shortage during the Korean conflict. Youngstown has been hailed as a leading statement of the importance of checks on the president. The justices stressed that Congress specifically had denied the president general seizure power to avert work stoppages.

Justice Robert H. Jackson's concurrence presented a conceptual framework for evaluating presidential action. In category 1, when the president acts with express or implied authority provided by Congress, his action enjoys the highest degree of legitimacy. In category 2, when the president acts in the face of legislative silence, a “zone of twilight” requires the Court to consider the scope of the president's constitutional authority in light of “imponderables” of the moment. In category 3, when the president acts contrary to the express or implied will of Congress, his authority is at its lowest ebb. Jackson noted that the Court cannot uphold the president's action in category 3 without disabling Congress from acting, which should not be done except in unusual circumstances since it would threaten the constitutional balance between the branches of government.

Many commentators have praised Justice Jackson's effort to clarify limits on presidential power. In practical reality, the president can initiate action more swiftly than Congress. Given its size, the diversity of its membership, and its generally reactive posture, Congress takes time to formulate a position. Nevertheless, when a specific congressional view is expressed, Youngstown suggests that it should be taken seriously.

Vietnam and Its Aftermath

Congress was slow to manifest its opposition to the war in Vietnam, which involved the deployment of U.S combat troops in that country from 1965 to the mid‐1970s. Indeed, Congress gave the president wide‐ranging power to prosecute the war in the Tonkin Gulf resolution (1964), a blank‐check authorization that many members of Congress later regretted. By 1973 and 1974, however, Congress imposed specific restrictions on further war making in Vietnam, and the U.S. embassy in Saigon was evacuated in April 1975. Although U.S. military involvement had been a presidential initiative, Congress played a key role in bringing the involvement to an end. The Court declined to decide the constitutionality of the war. However, in its 1971 Pentagon Papers decision (which held that the government had not met its “heavy burden of showing justification” for a prior restraint on the press), it did rule against the government in a First Amendment case. That case was one of the Vietnam‐era decisions in which the Court signaled its understanding that it is essential to protect political speech even in time of war (see Brandenburg v. Ohio).

In 1973, Congress adopted, over President Richard Nixon's veto, the War Powers Resolution, which sought to place general limits on war making by assuring a role for Congress (see War Powers). The constitutionality of the resolution has been a common topic of debate between the legislative and executive branches of government. The following decades saw continuous contention about the statute's applicability, with the executive branch frequently arguing that it did not limit the president in pursuing military objectives.

For years after Vietnam, U.S. military engagements tended to be brief. They included troop deployments to the island of Grenada (1983) and Panama (1990). Also, as the Iran‐Contra episode (1986) during the presidency of Ronald Reagan indicated, much of the country's involvement in foreign conflicts was covert. These changes in the use of U.S. power reflected the chastening effects of long‐term troop deployment in Vietnam and the continuing fear that conflicts might escalate into confrontations involving the two superpowers during the Cold War, the United States and the Soviet Union.

The Post–Cold War World

When the Cold War came to an end, international relations entered a new phase in which the United States became the world's only superpower. During the presidency of George H. W. Bush, the country fought the Gulf War of 1991, which turned backed an invasion of Kuwait by Iraq. This relatively short, decisive military encounter was the product of presidential initiative and prior congressional approval. During the presidency of George W. Bush in 2003, the United States undertook a much longer‐term invasion of Iraq to achieve regime change. Here again, the dominant pattern endured, for the military initiative was taken by the president, to whom Congress had given broad authority with a generally worded resolution. Renewed debate about the need to protect civil liberties in the larger war on terrorism came into prominence (see Detainee Cases).

See also Military Trials and Martial Law; Separation of Powers; War Powers.

Bibliography

Edwin S. Corwin , The President: Office and Powers, 5th ed. (1984).
Harold H. Koh , The National Security Constitution (1990).
Clinton Rossiter , The Supreme Court and the Commander in Chief (1976).
J. Malcolm Smith and and Stephen Jurika , The President and National Security: His Role as Commander‐in‐Chief (1972).

Thomas O. Sargentich