[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 13. Powers and Prerogatives of the House]
[B. War Powers]
[Â§ 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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[[Page 1778]]

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

[[Page 1779]]

    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

[[Page 1781]]

    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.