[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 13. Powers and Prerogatives of the House]
[B. War Powers]
[§ 3. In General]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1776-1782]
CHAPTER 13
Powers and Prerogatives of the House
B. WAR POWERS
Sec. 3. In General
Article I, section 8, clauses 11-14 of the Constitution describe
the fundamental war powers of Congress, including:
To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water; (10)
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10. See Sec. 5, infra, for a discussion of authority to declare war.
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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. . . .
Like all powers of Congress, the war power must also be understood in
light of the general grant of legislative authority of article I,
section 8, clause 18:
The Congress shall have Power . . . To make all Laws which
shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or
Officer thereof.
A more general grant of authority appears in article I, section 8,
clause 1, ``Congress shall have Power to lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common
Defense and general Welfare of the United States. . . .''
In addition to these powers, article I, section 8, clauses 15 and
16 grant Congress power over the militia, including:
To provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the
Militia, and for governing such Part of them as may be employed in
the Service of the United
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States, reserving to the States respectively, the Appointment of
the Officers, and the Authority of training the Militia according
to the discipline prescribed by Congress. . . .
Closely related to authority to protect the states is article IV,
section 4, which imposes duties on the United States without specifying
a particular political department:
The United States shall guarantee to every State in this Union
a Republican Form of Government, and shall protect each of them
against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against
domestic violence.
Significant among constitutional grants of authority are provisions
relating to raising and supporting an army and providing and
maintaining a navy. Pursuant to this authority Congress prohibited use
of conscripts and reserves beyond the Western Hemisphere prior to World
War II(11) and prohibited expenditure or obligation of funds
for military purposes in certain countries of Indochina during the
conflict in Vietnam.(12)
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11. See Sec. Sec. 9.4, 9.5, infra, for illustrations of these
restrictions.
12. See the precedents in Sec. 10, infra, for these restrictions.
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Article II, section 2, clause 1 provides that, ``The President
shall be Commander in Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called into the actual
Service of the United States. . . .''
The precedents in this division focus primarily on congressional
authorization of and limitations on use of force by the Commander in
Chief.(13)
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13. See Sec. Sec. 5, 8, infra, for discussion of the authorization of
use of force by declaration of war and by statute,
respectively; and Sec. Sec. 9, 10, infra, for precedents
relating to restrictions on use of force.
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Although the Supreme Court has declined to pass on the
constitutionality of the ``peacetime'' draft, lower courts have
uniformly held that the congressional power to raise armies is not
limited by the absence of a declaration of war.(14) In
upholding a statute prohibiting destruction of a selective service
registrant's registration certificate, Chief Justice Warren, speaking
for the court majority, observed that, ``. . . the power of Congress to
classify and conscript manpower for military serv
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14. Constitution of the United States of America: Analysis and
Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., p. 331
(1973). See, for example, Hart v United States, 382 F2d 1020
(3d Cir. 1967), cert. denied, 391 U.S. 956 (1968); and United
States v Holmes, 387 F2d 781 (7th Cir. 1967), cert. denied, 391
U.S. 936 (1968).
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ice is `beyond question.' '' (15) In a dissent, Justice
Douglas denied that the question of peacetime conscription was
settled.(16)
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15. United States v O'Brien, 391 U.S. 367, 377 (1967). The internal
quotation was taken from Lichter v United States, 334 U.S. 742,
756 (1948) which upheld the wartime renegotiation Act as a
constitutional exercise of the authority of Congress to ``make
all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers.''
16. United States v O'Brien, 391 U.S. 367, 389 (1967). See his dissent
to the denial of certiorari in Holmes v United States, 391 U.S.
936 (1968).
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Wartime conscription does not deprive the states of the right to a
well-regulated militia or violate the 13th amendment which prohibits
involuntary servitude.(17) In making this determination, the
Supreme Court rejected the contention that congressional power to exact
compulsory service was limited to calling forth the militia for the
three purposes specified in the Constitution,(18) despite
the fact that none of these purposes explicitly comprehend service
abroad.
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17. Selective Draft Law Cases, 245 U.S. 381 (1918).
18. Id. These purposes are to execute the laws of the Union, suppress
insurrections, and repel invasions. See U.S. Const. art. I,
Sec. 8, clause 15.
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The sections in this division focus on the role of Congress in
committing troops to hostilities, and include discussion of
institutional means to insure congressional judgment in such
circumstances; (19) declarations of war; (20)
authorization of use of force and activation of reserves by legislation
short of declarations of war; (1) restrictions on use of
force and deployment of troops before World War II (2) and
during the Vietnam era; (3) receipt of Presidential
messages; (4) and publication of Presidential
proclamations.(5)
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19. Sec. 4, infra.
20. Sec. Sec. 5-7, infra.
1. Sec. 8, infra.
2. Sec. 9, infra.
3. Sec. 10, infra.
4. Sec. 11, infra.
5. Sec. 12, infra.
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Collateral References (6)
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6. The articles in this section relate to war powers generally. See
collateral references in Sec. 4, infra, War Powers Act, and
Sec. 10, infra, Vietnam Era Restrictions on Military Activity,
for articles relating to these areas.
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Berdahl, Clarence Arthur. War Powers of the Executive in the United
States. Johnson Reprint Corp., New York 1970 [c1921].
Berger, Raoul. War-making by the President. 121 U. of Pa. L. Rev. 29-86
(Nov. 1972). See 119 Cong. Rec. 4568-84, 93d Cong. 1st Sess., Feb.
20, 1973, for a reprint of this article.
Bickel, Alexander. Congress, the President and the Power to Wage War.
48
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Chicago-Kent L. Rev. 131 (Fall-Winter 1971).
Campisi, Dominic J. Honored in the Breech: Presidential Authority to
Execute the Laws with Military Force. 83 Yale L.J. 130 (1973).
Coolidge, Francis L., Jr., and Sharrow, Joel David. The War-Making
Powers: The Intentions of the Framers in Light of Parliamentary
History. 50 Boston U.L.R. 4 (Spring 1970).
Deutsch, Eberhard P. The President as Commander in Chief. 57 A.B.A.J.
27 (1971).
Emerson, J. Terry. War Powers: An Invasion of Presidential Prerogative.
58 A.B.A.J. 809 (1972).
Fulbright, J. W. Congress, the President and the War Power. 25 Ark. L.
Rev. 71-84 (Spring 1971).
Goldwater, Barry M. The President's Constitutional Primacy in Foreign
Relations and National Defense. 13 Va. Jour. of International Law
463-89 (Summer 1973).
Keown, Stuart S. The President, the Congress, and the Power to Declare
War. 16 U. of Kansas L.R. 82 (Nov. 1967).
Lofgren, Charles A. War-Making Under the Constitution: The Original
Understanding. Yale L.J. 672 (1972).
May, Ernest. The Ultimate Decision: The President as Commander in
Chief. G. Braziller (1960).
McKay, Robert B. The Constitutional Issues--the Opposition Position. 45
N.Y.U.L.R. 640 (1970) [reply to Rehnquist, William H., The
Constitutional Issues--Administration Position, 45 N.Y.U.L.R. 628
(1970)].
Monaghan, Henry P. Presidential War-Making. 50 Boston U.L.R. 19 (Spring
1970).
Moore, John Norton. The National Executive and the Use of Armed Forces
Abroad. 21 Naval War Coll. Rev. 28 (1969), reprinted in The Vietnam
War and International Law, Princeton University Press, Princeton,
N.J. 808 (1969).
Pusey, Merlo John. The Way We Go to War. Houghton Mifflin Co., Boston
(1969).
Ratner, Leonard G. The Coordinated War-Making Power--Legislative,
Executive, and Judicial Roles. 44 So. Calif. L. Rev. 461-89 (Winter
1971).
Rehnquist, William H. The Constitutional Issues--Administration
Position. 45 N.Y.U. L. Rev. 628-39 (June 1970).
Reveley, W. Taylor, III. Presidential War-Making: Constitutional
Prerogative or Usurpation? 55 Va. L. Rev. 1243-305 (Nov. 1969).
Rogers, William P. Congress, the President, and the War Powers. 59
Calif. L. Rev. 1194-214 (Sept. 1971).
Round Table: The Role of Congress. 65 American Journal of International
Law 168 (Sept. 1971) [proceedings of the American Society of
International Law at its 65th annual meeting, Wash., D.C., Apr. 29,
May 1, 1971 (participants: Jacob Javits, Paul Findley, George Ball,
and McGeorge Bundy)].
Schlesinger, Arthur, Jr. Congress and the Making of American Foreign
Policy. 5 Foreign Affairs 78 (Oct. 1972).
Shaffer, Lewis A. Presidential Power to Make War. 7 Ind. L. Rev. 900-24
(1974).
Velvel, L. R. Constitution and the War: Some Major Issues. 49 Jour. of
Urban Law--U. of Detroit 231-95 (Nov. 1971).
Wright, Quincy. The Power of the Executive to Use Military Forces
Abroad. 10
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Va. Jour. of International Law 42-57 (Dec.
1969).
Termination of State of War With Germany
Sec. 3.1 The House and Senate agreed to a House joint resolution
terminating the state of war between the United States and the
government of Germany.
On July 27, 1951,(7) the House by a vote of yeas 379,
present 1, not voting 53, agreed to a House joint resolution,
terminating the state of war between the United States and the
Government of Germany. On Oct. 18, 1951,(8) the Senate by
voice vote passed the measure (9) which was approved by the
President in the following form: (10)
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7. 97 Cong. Rec. 9036, 9049, 9050, 82d Cong. 1st Sess.
8. 97 Cong. Rec. 13438, 13443, 82d Cong. 1st Sess.
9. See 97 Cong. Rec. 13785, 82d Cong. 1st Sess., Oct. 20, 1951, for
notification to the Clerk of Presidential approval.
10. This excerpt is taken from 65 Stat. 451, 82d Cong. 1st Sess. (Pub.
L. No. 82-181).
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Joint Resolution 289
To terminate the state of war between the United States and the
Government of Germany.
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That the state of
war declared to exist between the United States and the Government
of Germany by the joint resolution of Congress approved December
11, 1941, is hereby terminated and such termination shall take
effect on the date of enactment of this resolution: Provided,
however, That notwithstanding this resolution and any proclamation
issued by the President pursuant thereto, any property or interest
which prior to January 1, 1947, was subject to vesting or seizure
under the provisions of the Trading With the Enemy Act of October
6, 1917 (40 Stat. 411), as amended, or which has heretofore been
vested or seized under that Act, including accruals to or proceeds
of any such property or interest, shall continue to be subject to
the provisions of that Act in the same manner and to the same
extent as if this resolution had not been adopted and such
proclamation had not been issued. Nothing herein and nothing in
such proclamation shall alter the status, as it existed immediately
prior hereto, under that Act, of Germany or of any person with
respect to any such property or interest.
Approved October 19, 1951.
Attorney General's Opinion Regarding President's Authority to Exchange
Ships for Bases
Sec. 3.2 The House received an opinion of the Attorney General
outlining the President's authority to acquire offshore naval and
air bases from Great Britain and transfer
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American destroyers to Great Britain.
On Sept. 3, 1940,(11) the House received an opinion from
the Attorney General (12) as to the authority of the
President to enter into agreements for the acquisition of offshore
military bases (see below). The opinion accompanied the President's
message regarding the agreements in question.(13)
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11. 86 Cong. Rec. 11355-57, 76th Cong. 3d Sess.
12. See Borchard, The Attorney General's Opinion on the Exchange of
Destroyers for Naval Bases, 34 American Journal of
International Law 690 (1940).
13. See Sec. 11.7, infra, for the text of the President's message.
August 27, 1940.
The President,
The White House.
My Dear Mr. President: In accordance with your request, I have
considered your constitutional and statutory authority to proceed
by Executive agreement with the British Government immediately to
acquire for the United States certain offshore naval and air bases
in the Atlantic Ocean without awaiting the inevitable delays which
would accompany the conclusion of a formal treaty.
The essential characteristics of the proposal are:
(a) The United States to acquire rights for immediate
establishment and use of naval and air bases in Newfoundland,
Bermuda, the Bahamas, Jamaica, Santa Lucia, Trinidad, and British
Guiana, such rights to endure for a period of 99 years and to
include adequate provisions for access to and defense of such bases
and appropriate provisions for their control.
(b) In consideration it is proposed to transfer to Great
Britain the title and possession of certain over-age ships and
obsolescent military materials now the property of the United
States and certain other small patrol boats which, though nearly
completed, are already obsolescent.
(c) Upon such transfer all obligation of the United States is
discharged. . . . [Our Government] undertakes no defense of the
possessions of any country. In short, it acquires optional bases
which may be developed as Congress appropriates funds therefor, but
the United States does not assume any continuing or future
obligation, commitment, or alliance.
The questions of constitutional and statutory authority, with
which alone I am concerned, seem to be these:
First. May such an acquisition be concluded by the President
under an Executive agreement, or must it be negotiated as a treaty,
subject to ratification by the Senate?
Second. Does authority exist in the President to alienate the
title to such ships and obsolescent materials; and if so, on what
conditions?
Third. Do the statutes of the United States limit the right to
deliver the so-called mosquito boats now under construction or the
over-age destroyers by reason of the belligerent status of Great
Britain? . . .
Accordingly you are respectfully advised:
(a) That the proposed arrangement may be concluded as an
Executive
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agreement, effective without awaiting ratification.
(b) That there is Presidential power to transfer title and
possession of the proposed considerations upon certification by
appropriate staff officers.
(c) That the dispatch of the so-called mosquito boats would
constitute a violation of the statute law of the United States, but
with that exception there is no legal obstacle to the consummation
of the transaction, in accordance, of course, with the applicable
provisions of the Neutrality Act as to delivery.
Respectfully submitted.
Robert H. Jackson,
Attorney General.