War and emergency powers
Not appearing in the Constitution, the phrase "war powers" nonetheless describes a cluster of powers exercised by the President or Congress, together or separately, to combat both domestic insurgency and foreign military enemies. They comprise those activities necessary "to wage war successfully," including the raising of troops, the provision of equipment and supplies, the mobilization of opinion, and the maintenance of security in loyal areas (during civil war or insurgency) or on the home front (during foreign war).
As with all governmental activity, the legitimacy of the war powers depends ultimately on explicit or implicit sources in the Constitution. Among these are the grants to Congress of authority "to declare War," to raise, maintain, and make rules for federal military forces, and "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Other sources include the Article I authorization to suspend the privilege of the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it," the Article II clauses making the President commander-in-chief, giving him power to make treaties subject to Senate consent, and charging him to "take Care that the Laws be faithfully executed," and the Article IV commitments guaranteeing "to every State … a republican form of government " and pledging protection against invasion and domestic violence. Magnifying all these grants is the necessary and proper clause.
Contrariwise, only in exceptional circumstances have officials instituted treason prosecutions, for in Article III the Framers laid out strict evidentiary requirements, owing to the crime's draconian connotations. But such seemingly plausible restrictions as the first amendment and Fifth Amendment, the principle of separation of powers, and the rule against delegation of power have seldom proved real barriers to effective wartime government; and generally judicial review has had little impact on the power to make war.
As early as 1792, Congress empowered the President to call forth state militias when "combinations too powerful to be suppressed by the ordinary course of judicial proceedings" prevented the execution of federal law. Used during the whiskey rebellion (1794), and subsequently modified to include regular military forces and to clarify the President's authority to determine the existence of emergency, this provision later helped undergird President abraham lincoln's response to the siege of Fort Sumter. The alien and sedition acts of 1798 provide another early illustration of legislative-executive collaboration; adopted during the Quasi-War with France, they posed the enduring issue of reconciling civil liberties with the perceived requirements of internal security.
Although Presidents thomas jefferson and andrew jackson confronted serious opposition to enforcement of federal law during the Embargo and nullification crises, the civil war produced the first comprehensive test of the war powers' true potential. With only a slender statutory base—or none at all—for much of his action, Lincoln called out the militia, requested federal volunteer troops, increased the size of the regular army and navy, spent money from the treasury, established a naval blockade of the Confederacy, and suspended the privilege of the writ of habeas corpus. When Congress finally met at Lincoln's call, on July 4, 1861, it confronted not only a program already in place but also the President's explanation that his actions, "whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting … that Congress would readily ratify them."
Besides retroactively endorsing much of the Lincoln program, Congress voted appropriations and passed confiscation, legal tender, and draft legislation to support the defeat of the rebellion. It also authorized Lincoln's seizure of the Union's telegraphs and railways in January 1862. The general rule of the Civil War, however, was executive initiative under the theory that the Constitution had been intended to provide government adequate to all contingencies. This view built on the federalist #23 and luther v. borden (1849) and gained important wartime endorsement in the prize cases (1863). Its fullest elaboration appeared in War Powers under the Constitution of the United States, a massive exposition and compilation by William Whiting, the War Department's solicitor.
Even Lincoln's internal security program, which emphasized military arrest without warrant, detention without trial, and release once danger had passed, escaped serious censure during the war itself, despite the short-term imprisonment of some 13,000 to 25,000 northern civilians. Typical of Court review of war powers disputes, Chief Justice roger b. taney's attack on the suspension of habeas corpus, in Ex parte Merryman (1861), was feeble and futile, while the more serious blow in ex parte milligan came in 1866, after the war had ended.
In world war i, woodrow wilson by no means ignored the Lincoln model; such key agencies as the War Industries Board and the Committee on Public Information rested solely on executive authority. But the bulk of the internal effort during 1917–1918 relied on congressional delegation of power. Wilson in turn delegated authority to a host of administrative agencies that exercised direct control of the sinews of war.
The resulting intervention contrasted markedly with the Civil War experience. Bolstering prewar statutes that had given the President power to place mandatory defense contracts with private firms, the Lever Act (1917) constituted the war's largest delegation of power. It allowed sweeping regulation of priorities, production, and prices throughout the economy; yet in only a minor detail did the Supreme Court eventually rule the act unconstitutional, in United States v. Cohen Grocery Company (1921). The Trading with the Enemy Act (1917) permitted control of foreign commodity and currency transactions, encountered no significant judicial challenge, and later provided a statutory base for President franklin d. roosevelt's "Bank Holiday" during the economic emergency of the Great Depression. (Not until 1977 did Congress limit the law's availability to periods of declared war—and then provided a slightly narrower set of financial powers for use in other crises.) The selective service act (1917) gave free rein to Wilson in establishing draft machinery and received strong endorsement in the selective draft law cases (1918), a decision supplying precedent for upholding selective service legislation in World War II and the Cold War. The espionage act (1917) and sedition act (1918) enlisted the judicial system and were upheld in schenck v. united states (1919), abrams v. united states (1919), and Pierce v. United States (1920). Over 1,900 prosecutions took place under these two measures, with 930 convictions.
In world war ii, President Roosevelt effectively combined the Lincoln and Wilson approaches. He based many actions and agencies on his inherent powers as commander-in-chief, even when tackling problems of domestic mobilization. The National War Labor Board is an example. Created in January 1942 to insure against labor strife and work stoppages in war industries, its orders were in theory only "informatory," "at most advisory"; yet companies violating the orders were denied federal contracts and needed materials. Recalcitrant workers risked revocation of their draft exemptions and denial of other jobs within the jurisdiction of the United States Employment Service. Although avowedly established under authority vested in Roosevelt "by the Constitution and the statutes of the United States" (a commonly used formula for World War II agencies), until June 1943 the Board actually had no statutory base but rather fell under the Office of Emergency Management, itself a creation within the Executive Office of the President.
Other action rested on legislation. In September 1939, well before American entry into the war, Roosevelt's declaration of a national emergency activated laws, some dating to before World War I, that empowered him to increase the size of the army and navy, regulate banking and currency dealing, take over factories and power plants, reallocate appropriations among executive departments and agencies, and censor wire and radio communications. The Lend-Lease Act (1941) delegated the broadest procurement powers ever given to a President, yet it was never challenged judicially. The Office of Price Administration, established under the Emergency Price Control Act (1942), provided the major wartime inflation fighting program; like the nonstatutory agencies, it often employed indirect sanction that proved impossible to challenge judicially. Decisions validating the act included yakus v. united states (1944), Bowles v. Willingham (1944), and Steuart and Brothers v. Bowles (1944). Not surprisingly, the war's proliferation of alphabetical agencies dwarfed the New Deal's.
In addition, the government had a sedition law available (the Smith Act of 1940), but widespread support for the war meant relatively few prosecutions. The Japanese American relocation program—the single most blatant obstruction of civil liberties in the nation's history—instead had its own flimsy legislative base and for practical purposes received judicial sanction in the Japanese American Cases—Hirabayashi v. United States (1943) and Korematsu v. United States (1944).
The lesson of the two world wars, as Clinton Rossiter accurately summarized, is "that in time of war Congress can pass just about any law it wants as a "necessary and proper' accessory to the delegated war powers; that the President can make just about any use of such law he sees fit; and that the people with their overt or silent resistance, not the Court with its power of judicial review, will set the only practical limits to arrogance of abuse." Indeed, even popular resistance, real or imagined, generally has proved more of a challenge to be subdued than a restrictive hurdle.
Punctuated by limited wars in Korea and Vietnam, the period of Cold War since 1945 conveys a similar lesson: if Congress and the President act together, little likelihood exists of judicial challenge. In this respect President harry s. truman erred during the korean war, when a plant seizure triggered Youngstown Sheet and Tube Co. v. Sawyer (1952). As for the vietnam war, Presidents lyndon b. johnson and richard m. nixon found that despite flagging public support, Congress kept voting supplies until the main fighting was over. For its part, the judiciary moved only gingerly when limiting use of war-related powers, as in new york times v. united states (1971) (government secrecy), and united states v. united states district court (1972) (national security electronic surveillance). Moreover, the Supreme Court in laird v. tatum (1972) held that the courts lacked jurisdiction over a challenge to the use of military personnel to gather domestic intelligence pertaining to potential public disorder; and other courts managed to discover executive-legislative agreement in Congress's decision finally to cut appropriations for operations in or over Cambodia.
Future Presidents may not benefit so readily from legislative acquiescence. Soon after enacting the War Powers Resolution (1973) to control external warmaking by the President, Congress passed the national emergencies act (1976). Recent studies had disclosed that four declarations of national emergency were still in effect, one dating to 1933 and another to 1950; these proclamations activated 470 provisions of federal law, many of which lingered from the two world wars and Korea. The 1976 law ended these existing emergencies two years after its passage, mandated periodic six-month review of any future emergency declarations, and made them terminable by concurrent resolution—a procedure of doubtful constitutionality under immigration and naturalization service v. chadha (1983). The act also required Presidents to inform Congress fully of the legislative basis for emergency actions. But subsequent response to President jimmy carter's declaration of national emergency over the Iranian hostage crisis (1979) indicated little congressional desire to adhere rigorously to the new requirements.
Whenever a crisis plausibly justifies their exercise, the war powers seem likely to continue to generate government centered in the executive branch, emphasizing energetic administration that transcends normal restrictions, and on occasion sufficiently vigorous to warrant the label "constitutional dictatorship."
Charles A. Lofgren
Fisher, Louis 1985 Constitutional Conflicts between Congress and the President. Princeton, N.J.: Princeton University Press.
Rossiter, Clinton (1948) 1963 Constitutional Dictatorship: Crisis Government in the Modern Democracies. New York: Harcourt, Brace.
——(1951) 1976 The Supreme Court and the Commander in Chief. Expanded edition by Richard P. Longaker. Ithaca, N.Y.: Cornell University Press.
WAR POWERS. Since the United States was created, Congress and the president have been in conflict over which branch of government has the power to make war. Though the Constitution gives the balance of war power to the legislative branch, the executive branch has steadily enlarged its authority for more than a century.
In 1787, the framers of the Constitution were eager to reject the English precedent granting the king authority over most matters of foreign policy, including military decisions. Consequently, they gave to Congress the key powers of declaring war and raising and regulating the various armed forces. The president received the strictly defensive, emergency power to "repel sudden attacks" and the title Commander in Chief, which entailed leading armies only after Congress had formed them and committed America to war.
In the decades after the Constitution was ratified, presidents mostly deferred to the legislative branch in military affairs. For example, even though George Washington's campaigns against various Indian tribes were considered defensive, Congress nevertheless repeatedly authorized his use of force on the frontier. Though James Madison asked Congress to declare what became known as the War of 1812, he did not take action for several weeks while the House and Senate debated.
President James K. Polk was the first executive to assume significant war power for himself, during the Mexican-American War (1846–1848). After negotiations with Mexico to purchase parts of California and New Mexico failed, Polk opted to take the land by force. He sent American troops to disputed territory along the Texas-Mexico border and later told Congress that America had been invaded and that "war exists." Though Congress eventually made a declaration, it censured Polk two years later on the grounds that the war had been "unnecessarily and unconstitutionally begun."
In the early twentieth century, presidents began to conceive of their defensive war powers more broadly, as a mandate to protect American interests wherever they were threatened. The new rationale served the United States' increasingly imperial foreign policy by justifying a series of far-flung military commitments. In 1903, for example, Theodore Roosevelt was having difficulty buying the rights to what would become the Panama Canal Zone from Colombia, which then controlled Panama. To make the transaction easier, he both financed and provided troop support for a Panamanian revolution, knowing that a nominally independent but quiescent Panama would grant cheap access to the canal zone. Woodrow Wilson sent troops to Mexico (1914), Haiti (1915), and the Dominican Republic (1916) out of a general determination to dominate the hemisphere and export American values. Though Congress gave subsequent approval to some of these invasions, they were initiated by presidents claiming expansive, unprecedented war power.
In 1936, the Supreme Court's decision in United States v. Curtiss-Wright Corporation helped legitimize growing conceptions of executive authority. The Court ruled that Congress could give the president more discretion in foreign affairs than would be appropriate in domestic matters. Moreover, it gave the president the authority to make diplomatic policy independently on the grounds that the president is the "sole organ of the federal government in the field of international relations." The judiciary has since cited Curtiss-Wright in numerous decisions upholding presidential war power.
Since World War II, presidents have made several large-scale military commitments and many smaller ones without congressional authorization. They tend to cite their own authority as commander in chief and often claim to be acting pursuant to United Nations resolutions or mutual treaties (such as NATO or SEATO). Harry Truman cited two UN Security Council resolutions to justify involvement in the Korean War (1950–1953). He failed to notify Congress until after he committed troops, and his administration chose not to seek congressional support. Several days after Truman sent forces to Korea, he claimed that the United States was not at war and defined the military effort as a "police action."
Truman's behavior inspired few objections at first, but as the war became a stalemate, opposition grew. In 1951 he sent forces to Europe, and after a long debate, the Senate passed a non-binding resolution reclaiming the power to approve troop assignments in advance. In 1952 Truman seized steel plants whose workers threatened to strike in order to maintain Korean War production, but the Supreme Court ruled that the move overstepped executive authority. Nevertheless, presidential war power continued to grow.
After two apparent North Vietnamese attacks on American destroyers in the Gulf of Tonkin in 1964, Lyndon Johnson sought congressional approval to retaliate. (In fact, reports on one of the North Vietnamese attacks relied on questionable sonar readings, and there is considerable evidence that it never happened.) Both houses responded immediately with the Gulf of Tonkin Resolution, which allowed the use of force "to repel any armed attack" and "to prevent further aggression." Though the resolution was clearly limited in scope, the American troop commitment grew from 18,000 to 125,000 within a year. It would soon exceed 500,000.
As with Korea, Congress tried to exert its war power only after the fact, when the Vietnam War had become a disaster. In 1969 the Senate passed a non-binding resolution urging executive and legislative cooperation. In 1973 Congress finally passed a binding measure, the War Powers Resolution, requiring the president to get legislative approval before sending troops into long-term combat.
Recent presidents, however, have taken advantage of several loopholes in the War Powers Act, most notably a clause that allows presidentially declared wars lasting 60 days or less. Ronald Reagan's interventions in Lebanon (1982) and Libya (1986) lacked congressional approval, and while George H. W. Bush received authorization for the Persian Gulf War (1991), he ordered the invasion of Panama (1989) while Congress was out of session. Bill Clinton acted unilaterally in Iraq (1993, 1998), Haiti (1994), and Bosnia (1995). Congress gave limited approval to the war in Afghanistan in 2001. On September 12, the day after the attacks on the World Trade Center and the Pentagon, a joint resolution supported "the determination of the President, in close consultation with Congress, to bring to justice and punish the perpetrators of these attacks as well as their sponsors."
Recent arguments in favor of presidential war power claim that the framers did not anticipate modern warfare, which occurs in a fast-moving global context and depends on speed and secrecy. Advocates of congressional authority maintain that the decision to commit the country to war should not belong to a single person, but they have yet to make the case consistently or vigorously enough to reverse the long historical trend.
Fisher, Louis. Presidential War Power. Lawrence: University Press of Kansas, 1995.
Javits, Jacob K. Who Makes War: The President Versus Congress. New York: Morrow, 1973.
Lehman, John F. Making War: The 200-Year-Old Battle Between the President and Congress over How America Goes to War. New York: Scribners, 1992.
Westerfield, Donald L. War Powers: The President, the Congress, and the Question of War. Westport, Conn.: Praeger, 1996.