The War Power

Clauses 11, 12, 13, and 14. The Congress shall have power * * * ; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. To provide and maintain a Navy. To make Rules for the Government and Regulation of the land and naval Forces.


Source and Scope

Three Theories.—Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,1599 Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by Article I, § 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.1600 Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland,1601 he listed the power “to declare and conduct a war”1602 as one of the “enumerated powers” from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War, the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex parte Milligan, Chief Justice Chase described the power to declare war as “necessarily” extending “to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.”1603 In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,1604 the Court referred to “the war power” as a single unified power.1605

An Inherent Power.—Thereafter, we find the phrase, “the war power,” being used by both Chief Justice White1606 and Chief Justice Hughes,1607 the former declaring the power to be “complete and undivided.”1608 Not until 1936, however, did the Court explain the logical basis for imputing such an inherent power to the Federal Government. In United States v. Curtiss-Wright Corp.,1609 the reasons for this conclusion were stated by Justice Sutherland as follows: “As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency—namely, the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. . . . It results that the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality.”1610

A Complexus of Granted Powers.—In Lichter v. United States,1611 on the other hand, the Court speaks of the “war powers” of Congress. Upholding the Renegotiation Act, it declared that: “In view of this power ‘To raise and support Armies, . . . and the power granted in the same Article of the Constitution ‘to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers’, . . . the only question remaining is whether the Renegotiation Act was a law ‘necessary and proper for carrying into Execution’ the war powers of Congress and especially its power to support armies.”1612 In a footnote, it listed the Preamble, the Necessary and Proper Clause, the provisions authorizing Congress to lay taxes and provide for the common defense, to declare war, and to provide and maintain a navy, together with the clause designating the President as Commander-in-Chief of the Army and Navy, as being “among the many other provisions implementing the Congress and the President with powers to meet the varied demands of war. . . .”1613

1599 The Federalist, No. 23 (J. Cooke ed. 1937), 146–51.

1600 Penhallow v. Doane, 3 U.S. (3 Dall.) 53 (1795).

1601 17 U.S. (4 Wheat.) 316 (1819).

1602 17 U.S. at 407. (emphasis supplied).

1603 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (dissenting opinion); see also Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871); and United States v. MacIntosh, 283 U.S. 605, 622 (1931).

1604 Cong. Globe, 37th Congress, 1st Sess., App. 1 (1861).

1605 Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 86 (1875).

1606 Northern Pac. Ry. v. North Dakota ex rel. Langer, 250 U.S. 135, 149 (1919).

1607 Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934).

1608 Northern Pac. Ry. v. North Dakota ex rel. Langer, 250 U.S. 135, 149 (1919).

1609 299 U.S. 304 (1936).

1610 subject Curtiss-Wright Case, infra.

1611 334 U.S. 742 (1948).

1612 334 U.S. at 757–58.

1613 334 U.S. at 755 n.3.