War Legislation

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.


War Powers in Peacetime

To some indeterminate extent, the power to wage war embraces the power to prepare for it and the power to deal with the problems of adjustment following its cessation. Justice Story emphasized that “[i]t is important also to consider, that the surest means of avoiding war is to be prepared for it in peace. . . . How could a readiness for war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? . . . It will be in vain to oppose constitutional barriers to the impulse of self-preservation.”1696 Authoritative judicial recognition of the power is found in Ashwander v. TVA,1697 upholding the power of the Federal Government to construct and operate a dam and power plant, pursuant to the National Defense Act of June 3, 1916.1698 The Court noted that the assurance of an abundant supply of electrical energy and of nitrates, which would be produced at the site, “constitute national defense assets,” and the project was justifiable under the war powers.1699

Perhaps the most significant example of legislation adopted pursuant to the war powers when no actual “shooting war” was in progress was the Atomic Energy Act of 1946, establishing a body to oversee and further the research into and development of atomic energy for both military and civil purposes.1700 Congress has also authorized a vast amount of highway construction, pursuant to its conception of their “primary importance to the national defense,”1701 and the first extensive program of federal financial assistance in the field of education was the National Defense Education Act.1702 These measures, of course, might also be upheld under the power to spend for the “common defense.”1703 The post-World War II years, though nominally peacetime, constituted the era of the Cold War and the occasions for several armed conflicts, notably in Korea and Indochina, in which the Congress enacted much legislation designed to strengthen national security, including an apparently permanent draft,1704 authorization of extensive space exploration,1705 authorization for wage and price controls,1706 and continued extension of the Renegotiation Act to recapture excess profits on defense contracts.1707 Additionally, the period saw extensive regulation of matter affecting individual rights, such as loyalty-security programs,1708 passport controls,1709 and limitations on members of the Communist Party and associated organizations,1710 all of which are dealt with in other sections.

Other legislation is designed to effect a transition from war to peace. The war power “is not limited to victories in the field. . . . It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress.”1711 This principle was given a much broader application after the First World War in Hamilton v. Kentucky Distilleries, Co.,1712 where the War Time Prohibition Act1713 adopted after the signing of the Armistice was upheld as an appropriate measure for increasing war efficiency. The Court was unable to conclude that the war emergency had passed with the cessation of hostilities.1714 But in 1924, it held that a rent control law for the District of Columbia, which had been previously upheld,1715 had ceased to operate because the emergency which justified it had come to an end.1716

A similar issue was presented after World War II, and the Court held that the authority of Congress to regulate rents by virtue of the war power did not end with the presidential proclamation terminating hostilities on December 31, 1946.1717 However, the Court cautioned that “[w]e recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well. There are no such implications in today’s decision.”1718

In the same year, the Court sustained by only a five-to-four vote the Government’s contention that the power which Congress had conferred upon the President to deport enemy aliens in times of a declared war was not exhausted when the shooting stopped.1719 “It is not for us to question,” said Justice Frankfurter for the Court, “a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilites [sic] do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come.”1720

Delegation of Legislative Power in Wartime

During wartime, Congress has been prone to delegate more powers to the President than at other times.1721 The Court, however, has insisted that, “[i]n peace or war it is essential that the Constitution be scrupulously obeyed, and particularly that as in times of peace the respective branches of the government keep within the power assigned to each by the Constitution. On the other hand, . . . [i]n time of crisis nothing could be more tragic and less expressive of the intent of the people than so to construe their Constitution that by its own terms it would substantially hinder rather than help them in defending its national safety.”1722 Few cases, however, actually discuss when a wartime delegation of legislative power might be excessive.1723 Two theories have been advanced at times when the delegation doctrine carried more force than it has in recent years. First, has been suggested that, because the war power is inherent in the Federal Government, and one shared by the legislative and executive branches, Congress does not really delegate legislative power when it authorizes the President to exercise the war power in a prescribed manner. But this view overlooks the fact that the Constitution expressly vests the war power as a legislative power in Congress. Second, it has been suggested that Congress’s power to delegate in wartime is as limited as in other situations, but that the existence of a state of war is a factor weighing in favor of the validity of the delegation.

The first theory was fully stated by Justice Bradley in Hamilton v. Dillin,1724 upholding a levy imposed by the Secretary of the Treasury pursuant to an act of Congress. To the argument that the levy was a tax the fixing of which Congress could not delegate, Justice Bradley noted that the power exercised “does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the Government. . . .”1725

Both theories found expression in different passages of Chief Justice Stone’s opinion in Hirabayashi v. United States,1726 upholding executive imposition of a curfew on Japanese-Americans pursuant to legislative delegation. On the one hand, he spoke to Congress and the Executive, “acting in cooperation,” to impose the curfew,1727 while, on the other hand, he noted that a delegation in which Congress has determined the policy and the rule of conduct, leaving to the Executive the carrying-out of the policy, is permissible delegation.1728

A similar ambiguity is found in Lichter v. United States,1729 upholding the Renegotiation Act, but taken as a whole the Court there espoused the second theory. “The power [of delegation] is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to methods to be employed may be essential to an effective use of its war powers by Congress. The degree to which Congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition. . . . Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind.”1730 The Court then examined the exigencies of war and concluded that the delegation was valid.1731

1696 3 J. Story, Commentaries On The Constitution Of The United States 1180 (1833).

1697 297 U.S. 288 (1936).

1698 39 Stat. 166 (1916).

1699 297 U.S. at 327–28.

1700 60 Stat. 755 (1946), 42 U.S.C. §§ 1801 et seq.

1701 108(a), 70 Stat. 374, 378 (1956), 23 U.S.C. § 101(b), naming the Interstate System the “National System of Interstate and Defense Highways.”

1702 72 Stat. 1580 (1958), as amended, codified to various sections of Titles 20 and 42.

1703 Article I, § 8, cl.1.

1704 Universal Military Training and Service Act of 1948, 62 Stat. 604, as amended, 50 U.S.C. App. §§ 451–473. Actual conscription has been precluded as of July 1, 1973, Pub. L. 92–129, 85 Stat. 353, 50 U.S.C. App. § 467(c), although registration for possible conscription is in effect. Pub. L. 96–282, 94 Stat. 552 (1980).

1705 National Aeronautics and Space Act of 1958, 72 Stat. 426, as amended, codified in various sections of Titles 5, 18, and 50.

1706 Title II of the Defense Production Act Amendments of 1970, 84 Stat. 799, as amended, provided temporary authority for wage and price controls, a power which the President subsequently exercised. E.O. 11615, 36 Fed Reg. 15727 (August 16, 1971). Subsequent legislation expanded the President’s authority. 85 Stat. 743, 12 U.S.C. § 1904 note.

1707 Renegotiation Act of 1951, 65 Stat. 7, as amended, 50 U.S.C. App. §§ 1211 et seq.

1708 E.g., Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961); Peters v. Hobby, 349 U.S. 331 (1955).

1709 Zemel v. Rusk, 381 U.S. 1 (1965); United States v. Laub, 385 U.S. 475 (1967).

1710 United States v. Robel, 389 U.S. 258 (1967); United States v. Brown, 381 U.S. 437 (1965).

1711 Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 507 (1871) (upholding a federal statute that tolled the limitations period for state causes of action for the period during which the Civil War prevented the bringing of an action). See also Mayfield v. Richards, 115 U.S. 137 (1885).

1712 251 U.S. 146 (1919). See also Ruppert v. Caffey, 251 U.S. 264 (1920).

1713 Act of November 21, 1918, 40 Stat. 1046.

1714 251 U.S. at 163.

1715 Block v. Hirsh, 256 U.S. 135 (1921).

1716 Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924).

1717 Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948). See also Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947).

1718 333 U.S. at 143–44.

1719 Ludecke v. Watkins, 335 U.S. 160 (1948).

1720 335 U.S. at 170.

1721 For an extensive consideration of this subject in the context of the President’s redelegation of it, see N. Grundstein, Presidential Delegation Of Authority In Wartime (1961).

1722 Lichter v. United States, 334 U.S. 742, 779–80 (1948).

1723 In the Selective Draft Law Cases, 245 U.S. 366, 389 (1918), a “contention that an act [was] void as a delegation of federal power to state officials” was dismissed as “too wanting in merit to require further notice.” Likewise, “the contention that . . . vesting administrative officers with legislative discretion [is unconstitutional] has been so completely adversely settled as to require reference only to some of the decided cases.” Id. (citing three cases). A wartime delegation was upheld by reference to peacetime precedents in Yakus v. United States, 321 U.S. 414, 424 (1944).

1724 88 U.S. (21 Wall.) 73 (1875).

1725 88 U.S. at 96–97. Cf. United States v. Chemical Foundation, 272 U.S. 1 (1926).

1726 320 U.S. 81 (1943).

1727 320 U.S. at 91–92, 104.

1728 320 U.S. at 104.

1729 334 U.S. 742 (1948).

1730 334 U.S. at 778–79, 782.

1731 334 U.S. at 778–83.