War Powers of
The Constitution's division of powers leaves the President with some exclusive powers as Commander-in-Chief (such as decisions on the field of battle), Congress with certain other exclusive powers (such as the ability to declare war and appropriate dollars to support the war effort), and a sort of "twilight zone" of concurrent powers. In the zone of concurrent powers, the Congress might effectively limit presidential power, but in the absence of express congressional limitations the President is free to act. Although on paper it might appear that the powers of Congress with respect to war are more dominant, the reality is that Presidential power has been more important--in part due to the modern need for quick responses to foreign threats and in part due to the many-headed nature of Congress.
The Supreme Court has had relatively little to say about the Constitution's war powers. Many interesting legal questions--such as the constitutionality of the "police action" in Korea or the "undeclared war" in Viet Nam--were never decided by the Court. (Although the Supreme Court had three opportunities to decide the constitutionality of the war in Viet Nam, it passed on each one.)
the Civil War, the Court issued two significant
opinions interpreting the war powers. In the
Prize Cases (1863), the Court on a 5 to 4
vote upheld President Lincoln's order blockading
southern ports--even though the order was issued
prior to a formal declaration of war on the Rebel
states by Congress. The Court found
Lincoln's action authorized by a 1795 Act allowing
the President to call out troops to suppress an
insurrection. The dissenters argued the
President's action were unconstitutional, as a
blockade is quite different that an action merely
directed at those participating in an
insurrection. Three years later, in Ex
Parte Milligan, the Court found
unconstitutional Lincoln's order authorizing trial
by a military tribunal of Lambdin P. Milligan, an
Indiana lawyer accused of stirring up support for
the Confederacy. The Court ruled that
civilians must be tried in civilian courts, even
during time of war, so long at least as the
civilian courts are open and operating. The
Court also found the President lacked authority to
declare martial law in Indiana. Four
concurring justices argued that even though the
President did not have the power to order a
military trial of Milligan in the absence of
congressional action, the power to authorize use
of military tribunals did reside in Congress under
its war power.
In 1942, in Ex Parte Quirin, the Court considered the constitutionality of an order of President Roosevelt authorizing trial by military commission of eight German Nazi saboteurs arrested after entering the United States. The eight had planned to blow up munitions factories and military installations in the United States. The Court, voting 8 to 0, upheld the legality of trying the Germans (who the Court found to be unlawful combatants) in a military tribunal without the usual safeguards of the 5th and 6th Amendments. The Court found the authorization of trial by tribunal supported by legislation enacted by Congress, and noted that it need not decide whether a presidential order of trial by commission would be constitutional in the absence of congressional action.
the Supreme Court ruled in Hamdan v Rumsfield
that President Bush exceeded his powers under
the Constitution when he ordered that post 9-11
detainees held at Guantanamo, Cuba be put on
trial before military commissions. The
Court, 5 to 3, rejected the Administration's
claims that the President either had the
inherent power to order such trials or that the
trials were authorized by Congressional action
through its Authorization for the Use of
Military Force (AUMF) Resolution following the
terrorist attacks in 2001. Writing for the
Court, Justice Stevens said that trials must
comply with the Uniform Code of Military Justice
(the code governing courts martial) and the
Geneva Convention. The three
dissenters concluded that Congress had
"constitutionally eliminated jurisdiction over
this case," and therefore that Hamdan's case
should be dismissed.
War Powers of Congress
Kentucky Distilleries (1919), the Court
considered the constitutionality of a federal
law, enacted under the war power of Congress,
prohibiting the sale and distribution of
distilled spirits. Congress said the Act
was necessary "for the purpose of conserving the
man power of the Nation, and to increase
efficiency in the production of arms, munitions,
ships, food, and clothing for the army and
navy." Justice Brandeis, writing for the
Court, found the restriction to be within the
war powers of Congress and that the Act was not
a taking requiring just compensation. The
Court said that although at some time after the
cessation of hostilities the restriction must
come to an end, it would be reluctant to
conclude that the war power was no longer
effective so long as some troops remained abroad
and some other wartime measures remained in
In 2006, the Supreme Court revisited the question of constitutionally-required process for detainees at Guantanamo in the case of Hamdan vs Rumsfield. Hamdan conceded that the government had the right to court-martial him, but argued that trial by military commission in his case was neither authorized by statute or constitutional. The Supreme Court agreed, holding that trials by military commission were authorized by Congress only for (1) offenses that occurred in a theater of war, (2) during a period of war, and (3) were offenses that involved an illegitimate form of warfare. In the case of Hamdan, accused of conspiracy "to commit an offense triable by military commission," and who was alleged to have been a driver for Osama Bin Laden and arranged for transportation of weapons to Al Qaeda before U. S. action against Al Qaeda, the Court found none of the three necessary conditions met.
Power to Suspend the Writ of Habeas Corpus
In 2008, the Supreme Court in Boumediene et al. v Bush considered whether aliens designated as "enemy combatants" and held at a U. S. base at Guantanamo Bay, Cuba had the right to seek a writ of habeas corpus, despite an act of Congress that attempted to suspend that right. The Supreme Court, voting 5 to 4, concluded that they did. Writing for the Court, Justice Kennedy found that the constitutional privilege of seeking a writ extended to aliens detained on territory over which the United States is the de facto (if not de jure) sovereign and that the review process established for Guantanamo detainees was not an adequate substitute for habeas corpus review and therefore violated Article I, Section 9.
The case of Missouri v Holland (1920) presented the Court with an opportunity to define the reach of the treaty power. Missouri challenged the federal government's regulation of the hunting of migratory birds, including its setting of seasons, hunting methods, and limits. The regulations were adopted under the Migratory Bird Treaty Act, implementing a treating signed by the United States and Great Britain (for Canada). The Court upheld the regulations, even though they were not supported by specific Article I powers of Congress, as a reasonable implication of the President's Article II power to "make treaties." The Court cautioned, however, that the treaty-implementing power could not be used as an excuse for regulating activities that were not "a proper subject of regulation."
In Medelln v Texas (2008), the Court considered whether President Bush had the power to order Texas courts to reopen a criminal case after the International Court of Justice issued an order to that effect, finding that Texas officials had (inconsistent with the Vienna Convention) failed to notify Medelln, a Mexican national, that he had the right to contact the Mexican consulate after his arrest. The Court held that the president lacked the constitutional authority to turn a non-self-executing treaty into a treaty that effectively bound state officials.
Lambdin P. Milligan
Ex Parte Milligan (1866)
Ex Parte Quirin (1942)
Hamdi v Rumsfeld (2004)
Hamilton v Kentucky Distilleries (1919)
Hamdan v Rumsfield (2006)
Boumediene v Bush (2008)
2. Does the modern world require that the President have war power authority never envisioned by the framers? For example, can Congress respond sufficiently quickly to hijackings, terrorist bombings at overseas facilities, and other threats to American citizens?
3. A relatively rare effort by Congress to limit the President's power in the area of overseas military actions came in the War Powers Act of 1973, which required the President to report on troop commitments into hostile situations within 48 hours and required withdrawl of troops within 60 to 90 days unless the deployment were authorized by Congress. What is likely to happen if a President ignores the Act's provisions? What if the President contends the acts provisions have not been triggered? Would such a case, if litigated, present a "political question" that a court should not decide? Could a court order American troops to come home?
4. Under what circumstances is it constitutional to try persons before military tribunals? Was it constitutional to try southern-sympathizers involved in John Wilkes Booth's plot on President Lincoln and other high government officials? Does it matter whether the plotters had connections with the Confederate Secret Service? Three hundred Dakota warriors were sentenced to death in 1862 by a military tribunal for their role in an uprising against Minnesota settlers--was that constitutional? Would it be constitutional to try by military tribunal an American citizen found to have participated in the World Trade Center attack? A Canadian citizen?
5. Under what circumstances might a President declare martial law? (The Court, in 1946 (the year may be important!), found unconstitutional President Roosevelt's declaration of martial law in the Hawaii Territory following the attack on Pearl Harbor.)
6. Could the President sign a treaty with Canada relating to deer hunting (some deer, of course, cross the border) and then precede to enforce implementing legislation that set deer hunting seasons and limits across the country?
7. Does the Constitution give the President the power to restrict travel by American citizens to places such as Cuba?
8. Should Hamdi (and other citizens declared "enemy combatants" after 9-11 be entitled to a criminal trial, or should some lesser fact-finding process suffice? Did the Court in Hamdi strike a proper balance, using the Matthews balancing test, between the security concerns of the government and the liberty interests of Hamdi?
9. Do you consider it likely or unlikely that significant numbers of declared enemy combatants after 9-11 were in fact not enemy combatants at all, but rather persons erroneously deprived of their liberty?
10. In Hamdan v Rumsfield, the Supreme Court concludes that Congress's post-9/11 AUMF did not authorize the President to establish military commissions to try detainees held on charges of conspiracy to commit terrrorism. Does Hamdan suggest also that the President lacked authority to establish the NSA surveillance program, described below?
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