Supreme Court, War, and the Military

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Supreme Court, War, and the Military. Since its founding (1789), the U.S. Supreme Court generally has avoided questions of war, peace, and foreign affairs. In the relatively few such cases, the justices have usually supported the president over the Congress. Congress has generally acquiesced, and the Court sanctioned, presidential warmaking. However, in several dramatic exceptions the Court restrained the president's authority as commander in chief of the nation's armed forces.

Though the Constitution allocates all of the war powers to Congress, it confers the office of commander in chief on the president. In addition to the power to declare war, Congress has the constitutional authority to create and regulate the armed forces, allocate funds for the military, make rules of military conduct, and provide for organizing, arming, and disciplining the militia (the National Guard). Congress possesses all of the auxiliary war powers—the various powers necessary to wage war effectively. Constitutionally, Congress has the authority to decide when to wage war, to control the conduct of war, and to restore the nation to peace.

In granting the president the office of commander in chief, the framers of the Constitution had two basic objectives. First, they intended to secure civilian control over the military. Second, as the debates of the Constitutional Convention suggest, they gave the president authority to respond to sudden attacks on U.S. territory as well as U.S. citizens and the military at home and abroad. But they did not intend to grant the president authority to initiate war and hostilities. By separating the war powers from the office of commander in chief, the framers hoped to make it more difficult to go to war than to keep the peace.

Apparently, the framers believed in a distinction between aggressive or offensive war and defensive military measures. They recognized the necessity for dispatch in responding to sudden attacks, but wanted to assure democratic control over the decision to commit the nation to foreign wars. In a constitutional democracy, the separation and sharing of foreign affairs and other powers of external sovereignty was the best way to hold government accountable to the people. Despite the framers' intentions, a succession of strong presidents have presented Congress with military fait accomplis, which the justices generally have legitimized when called upon. The Marshall Court confirmed Congress's plenary authority to initiate and control the scope of hostilities during the Undeclared Naval War with France (1798–1800) and the War of 1812, but various presidents, beginning with Thomas Jefferson, have initiated military actions without consulting Congress. In the wars against the Barbary powers (1801–05), Jefferson dispatched a naval squadron to protect American shipping in the Mediterranean, waiting nine months to inform Congress of his actions. In response, Congress passed a resolution (1802) authorizing the president to protect American seamen. Apparently, Jefferson began the now well accepted practice of presidential initiative, subsequent communication with Congress, and expectation of pliant legislative approval.

Between 12 April and 4 July 1861, following the Confederate capture of Fort Sumter, Abraham Lincoln waged “war” against the Confederacy without calling Congress into session. He proclaimed a blockade of the belligerent states, increased the army, and expended public funds without congressional approval. When Lincoln suspended the Habeas Corpus Act, Chief Justice Roger Taney ordered the commanding general at Fort McHenry to release a military prisoner held without trial. Lincoln simply ordered General Cadwalader to ignore Taney's request (Ex parte Merryman, 1861). Lincoln defended these actions as defensive measures necessary to the preservation of the Union and its government, and therefore essential to the salvation of the Constitution.

In the Prize Cases (1862), the Supreme Court sustained the president's maritime seizures. Speaking for a narrow majority, Justice Robert Grier argued that the chief executive had a constitutional duty to meet force with force. Justice Samuel Nelson dissented that only Congress has the authority to initiate war and authorize belligerent measures. Only after the Civil War had ended, in Ex parte Milligan (1866), did the Court attempt to curb the president's wartime power by denying that he had the constitutional authority to suspend the writ of habeas corpus and substitute military tribunals for civilian courts outside the military theater. Similarly, during World War II, the Supreme Court upheld the evacuation (Hirabayashi v. U.S., 1943) and detention (Korematsu v. U.S.) of 112,000 Japanese Americans and legal resident aliens without civilian trials on charges of disloyalty or espionage (Ex parte Endo, 1944).

As the majority and dissenting opinions in the Prize Cases suggest, the distinction between defensive and offensive warfare is elusive. During the twentieth century, the emergence of guerrilla warfare, insurgency and counterinsurgency movements, wars of national liberation, and international terrorism has all but erased the framers' differentiation between aggression and defensive warfare. How far can the president go in defending the nation's strategic interests without intruding on congressional authority to initiate and control military hostilities? The Supreme Court's Curtiss‐Wright (1936) opinion holds that the president has inherent, extraconstitutional authority to protect the nation's military security, yet in Youngstown Sheet & Tube v. Sawyer (1952), the Court ruled that President Harry S. Truman could not seize the nation's steel mills, contrary to congressional policy, even to assure the delivery of essential war material during the Korean War. But Youngstown stands as an isolated curb on presidential warmaking power.

The Supreme Court has evaded an authoritative response, but Congress has attempted to clarify the boundaries. In the War Powers Resolution (1973), Congress sought to limit presidential authority to employ armed forces abroad without prior authorization. The resolution requires the president to report the commitment of armed forces to hostilities within forty‐eight hours and to withdraw such forces within sixty to ninety days, unless Congress authorizes continuing operations. In effect, Congress delegated the war power to the presidency but reserved the right to force removal of the troops. The Supreme Court has not decided the constitutionality of delegating authority to initiate hostilities for such a limited period of time.

Despite congressional attempts to rein in presidential warmaking, virtually every president since Richard M. Nixon has evaded the essential objective of the War Powers Resolution. By claiming that their actions were defensive, that hostilities were not present or imminent, or that U.S. forces were engaged in peacekeeping operations, recent presidents have circumvented the reporting requirements. In the Persian Gulf War, after Desert Shield, President George Bush obtained congressional consent for the offensive, Operation Desert Storm, in January 1991. As a result, the clock did not begin to toll on the time limit for withdrawing troops. With military forces in the field committed to combat, Congress has been reluctant to challenge the authority of the president as commander in chief.

At the beginning of the 104th Congress (1995–99), Senate majority leader Robert Dole suggested that the War Powers Resolution should either be amended or repealed because it had not restored legislative control over warmaking. Although Dole's argument was logically persuasive, unless Congress asserts its authority over foreign policy decisions, it is unlikely that lawmakers will alter the basic pattern of presidential initiative, legislative acquiescence, and judicial legitimation.
[See also Civil‐Military Relations; Japanese‐American Internment Cases; Selective Draft Cases.]


Abraham D. Sofaer , War, Foreign Affairs, and Constitutional Power, 1976–84.
W. Taylor Reveley III , War Powers of the President and Congress: Who Holds the Arrows and Olive Branch, 1981.
Abraham D. Sofaer , The War Powers Resolution, U.S. Department of State, Bureau of Public Affairs, Office of Communication, 1988.
Edward Keynes , Undeclared War: Twilight Zone of Constitutional Power, 1982; rev. ed. 1991.
Edward Keynes , The War Powers Resolution: A Bad Idea Whose Time Has Come and Gone, University of Toledo Law Review 23 (Winter 1992), pp. 343–62.
John Hart Ely , War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath, 1993.

Edward Keynes

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John Grier Hibben

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