Constitution of the United States/Art. I/Sec. 8/Clause 11 War Powers

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Constitutional Law Outline
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
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Article V Amending the Constitution
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First Amendment: Fundamental Freedoms
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
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Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
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Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
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Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
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Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
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Twenty-Fourth Amend., Section 1 Poll Tax
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Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 8 Enumerated Powers

Clause 11 War Powers

Clause Text
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Source of Congress's War Powers[edit | edit source]

Three different views regarding the source of "war powers" were expressed in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. In the Federalist Papers,[1] Alexander Hamilton elaborated on the theory that the war power is an aggregate of the particular powers granted to a National Government. In 1795, the argument was advanced that the National Government's war power is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.[2] In McCulloch v. Maryland, Chief Justice John Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it.[3] During the Civil War era, the two latter theories emerged from the Supreme Court. Speaking for four Justices in Ex parte Milligan, Chief Justice Salmon P. 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."[4] In another case, adopting the terminology used by President Abraham Lincoln in his Message to Congress on July 4, 1861,[5] the Court referred to "the war power" as a single unified power.[6]

In 1936, the Court explained the logical basis for imputing such an inherent power to the Federal Government. In United States v. Curtiss-Wright Corp.,[7] Justice George Sutherland stated the reasons for this conclusion:

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.Id. at 318; but see Torres v. Texas Dep't of Public Safety, No. 20-603, slip op. at 7 (U.S. June 29, 2022) ("For one thing, the Constitution's text, across several Articles, strongly suggests a complete delegation of authority to the Federal Government to provide for the common defense. Unlike most of the powers given to the national government, the Constitution spells out the war powers not in a single, simple phrase, but in many broad, interrelated provisions.").

Scope of Congress's War Powers[edit | edit source]

The Supreme Court has suggested the breadth of Congress's "war powers" covers matters beyond the authorization of military and naval operations to support economic measures with impact on private citizens.[8] For example, in McCulloch v. Maryland,[9] Chief Justice John Marshall listed the power "to declare and conduct a war" as one of the "enumerated powers" from which the authority to charter the Bank of the United States was deduced.[10]

In Lichter v. United States,[11] upholding the Renegotiation Act,[12] which permitted the government to recoup excessive profits from defense contractors, the Court 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.334 U.S. at 757-58.

In a footnote, the Court in Lichter 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 . . . ."[13] The Court in Lichter also compared the Renegotiation Act to the Selective Service Act, explaining that "[t]he authority of Congress to authorize each of them sprang from its war powers. Each was part of a national policy adopted in time of crisis in the conduct of total global warfare by a nation dedicated to the preservation, practice and development of the maximum measure of individual freedom consistent with the unity of effort essential to success."[14] The Court asserted that "[b]oth Acts were a form of mobilization" and that "[t]he language of the Constitution authorizing such measures is broad rather than restrictive."[15]

The Court has stated that "[the war power] is not limited to victories in the field . . . [as] [i]t 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."[16] After World War II hostilities ended, Congress enacted the Housing and Rent Act to continue the controls begun in 1942,[17] and continued the military draft.[18] With the outbreak of the Korean War, legislation was enacted establishing general presidential control over the economy again,[19] and by executive order the President created agencies to exercise the power.[20] The Court continued to assume the existence of a state of wartime emergency prior to Korea, but with misgivings. In Woods v. Cloyd W. Miller Co.,[21] the Court held that the new rent control law were constitutional on the ground that cessation of hostilities did not end the government's war power, but that the power continued to remedy the evil arising out of the emergency. Yet as Justice William Douglas noted for the Court:

"We 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."Id. at 143-44.

Justice Robert Jackson, concurring, explained that he found the war power "the most dangerous one to free government in the whole catalogue of powers" and cautioned that its exercise "be scrutinized with care."[22] In Ludecke v. Watkins,[23] four dissenting Justices were prepared to hold that the presumption in the statute under review of continued war with Germany was "a pure fiction" and not to be used. The majority in Ludecke held, however, that the delegated power of the President to remove enemy aliens during World War II continued after hostilities ended, determining that the termiation of "'[t]he state of war' . . . is a political act."[24]

Declarations of War[edit | edit source]

In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered "to make war."[25] Although there were solitary suggestions that the power should be vested in the President alone,[26] in the Senate alone,[27] or in the President and the Senate,[28] the limited notes of the proceedings indicate that the Convention's sentiment was that the potentially momentous consequences of initiating armed hostilities should require involvement by the President and both Houses of Congress.[29] In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual;[30] in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of Executive efficiency nor to entrust the matter solely to a branch so close to popular passions.[31]

The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to "declare war."[32] Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to ensure that the President was empowered to repel sudden attacks[33] without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.[34]

An early controversy revolved about the issue of the President's powers and the necessity of congressional action when hostilities are initiated against the United States rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Thomas Jefferson sent a squadron of frigates to the Mediterranean to protect American ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war.[35] Alexander Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war, but that when another nation made war upon the United States, the United States was already in a state of war and no declaration by Congress was needed.[36] Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli "and also to cause to be done all such other acts of precaution or hostility as the state of war will justify."[37] But Congress, apparently accepting Hamilton's view, did not pass a formal declaration of war.[38]

Sixty years later, the Supreme Court sustained the blockade of the Southern ports that Lincoln instituted in April 1861 at a time when Congress was not in session.[39] Congress subsequently ratified Lincoln's action,[40] so that it was unnecessary for the Court to consider the constitutional basis of the President's action in the absence of congressional authorization, but the Court in its 1863 decision The Prizes Cases nonetheless approved, 5-4, the blockade order as an exercise of Presidential power alone, on the ground that a state of war was a fact.[41] The Court reasoned: "The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact."[42] The minority challenged this doctrine on the ground that while the President could unquestionably adopt such measures as the laws permitted for the enforcement of order against insurgency, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences ensuing from a state of war.[43]

A unanimous Court adopted the position of the majority in the Prizes Case a few years later in The Protector when it became necessary to ascertain the exact dates on which the war began and ended. In The Protector, Chief Justice Salmon P. Chase reasoned that the Court must "refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second."[44]

These cases settled whether a state of war could exist without a formal declaration by Congress. When hostile action is taken against the Nation or against its citizens or commerce, the President may resort to force in response. But whether the Constitution empowers the President to commit troops abroad to further national interests absent a declaration of war or specific congressional authorization short of such a declaration has been controversial.[45] The Supreme Court has not addressed this issue[46] and lower courts have generally not adjudicated the matter on "political question" grounds.[47] Absent judicial guidance, Congress and the President have had to reach accommodations with each other.[48]

Enemy Property and Congress's War Powers[edit | edit source]

In Brown v. United States,[49] Chief Justice John Marshall addressed the legal position of enemy property during wartime. He held that the mere declaration of war by Congress does not effect a confiscation of enemy property situated within the territorial jurisdiction of the United States, but that Congress could subject such property to confiscation by further action.[50] As an exercise of the war power, such confiscation is not subject to the restrictions of the Fifth and Sixth Amendments.[51] Since such confiscation is unrelated to the personal guilt of the property owner, it is immaterial whether the property belongs to an alien, a neutral, or even to a citizen.[52] Confiscation operates as an instrument of coercion, which, by depriving an enemy of his or her property, impairs the ability of such enemy to oppose the confiscating government while providing the confiscating government the means for conducting the war.[53]

Prizes of War and Congress's War Powers[edit | edit source]

The power of Congress with respect to prizes is plenary; no one can have any interest in prizes captured except by permission of Congress.[54] Nevertheless, since international law informs United States law, the Court will apply international law norms so long as such international law norms have not been modified by treaty or by legislative or executive action.[55] Thus, during the Civil War, the Court found that the Confiscation Act of 1861[56] and the Supplementary Act of 1863,[57] which, in authorizing the condemnation of vessels, made provision for the protection of interests of loyal citizens, merely created a municipal forfeiture and did not override or displace the law of prize.[58] The Court decided, therefore, that when a vessel was liable to condemnation under either law, the government was at liberty to proceed under the most stringent rules of international law, with the result that the citizen would be deprived of the benefit of the protective provisions of the statute.[59] Similarly, when Cuban ports were blockaded during the Spanish-American War, the Court held that the rule of international law exempting unarmed fishing vessels from capture applied in the absence of any treaty provision, or other public act of the government in relation to the subject.[60]

  1. The Federalist No. 23 (Alexander Hamilton). Hamilton argued that the power to regulate the Armed Forces, like other powers related to the common defense, "ought to exist without limitation." Id.
  2. Penhallow v. Doane, 3 U.S. (3 Dall.) 54, 80 (1795) ("In [the Continental] Congress were vested, because by Congress were exercised with the approbation of the people, the rights and powers of war and peace. In every government, whether it consists of many states, or of a few, or whether it be of a federal or consolidated nature, there must be a supreme power or will; the rights of war and peace are component parts of this supremacy . . . ").
  3. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 373 (1819) ("[T]he power to declare war involves, by necessary implication, if anything was to be implied, the powers of raising and supporting armies, and providing and maintaining a navy, to prosecute the war then declared.").
  4. 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).
  5. Cong. Globe, 37th Congress, 1st Sess., App. 1 (1861).
  6. Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1875).
  7. 299 U.S. 304 (1936).
  8. See. e.g., United States v. Macintosh, 283 U.S. 605, 622 (1931), ("From its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law.") overruled on other grounds by Girouard v. United States, 328 U.S. 61, 66 (1946); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426 (1934) ("[The] war power of the federal government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme co-operative effort to preserve the nation."); Jacob Ruppert, Inc. v. Caffey, 251 U.S. 264, 299-300 (1920) (upholding the Volstead Act prohibition on the manufacture and sale of non-intoxicating beer on the basis that "the implied war power over intoxicating liquors extends to the enactment of laws which will not merely prohibit the sale of intoxicating liquors but will effectually prevent their sale"); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 507 (1870) ("[T]he [war] power is not limited to victories in the field and the dispersion of the insurgent forces. 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.").
  9. 17 U.S. (4 Wheat.) 316 (1819).
  10. Id. at 407-08 ("Although, among the enumerated powers of government, we do not find the word 'bank' or 'incorporation,' we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. . . . [I]t may with great reason be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution.").
  11. 334 U.S. 742 (1948).
  12. Sixth Supplemental National Defense Appropriation Act § 403, 56 Stat. 226, 245-246 (1942) (as amended).
  13. Id. at 755 n.3.
  14. Id. at 754-55.
  15. Id. at 755.
  16. Stewart v. Kahn, 78 U.S. 493, 507 (1870); see also Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919).
  17. 61 Stat. 193 (1947).
  18. 62 Stat. 604 (1948).
  19. Defense Production Act of 1950, 64 Stat. 798.
  20. E.O. 10161, 15 Fed. Reg. 6105 (1950).
  21. 333 U.S. 138 (1948).
  22. Id. at 146-47; but see Chastelton Corp. v. Sinclair, 265 U.S. 543, 547-48 (1924) ("[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. . . . A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed. . . . [The Court] is open to inquire whether the exigency still existed upon which the continued operation of the law depended.").
  23. 335 U.S. 160, 175 (1948).
  24. Id. at 168-69 (explaining that "'[t]he state of war' may be terminated by treaty or legislation or Presidential proclamation").
  25. 2 Records of the Federal Convention of 1787, at 313 (Max Farrand ed., 1937).
  26. Mr. Pierce Butler favored "vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it." Id. at 318.
  27. Mr. Charles Pinkney thought the House was too numerous for such deliberations but that the Senate would be more capable of a proper resolution and more acquainted with foreign affairs. Additionally, with the states equally represented in the Senate, the interests of all would be safeguarded. Id.
  28. Alexander Hamilton's plan provided that the President was "to make war or peace, with the advice of the senate." 1 id. at 300.
  29. 2 id. at 318-319. In the Federalist No. 69 (Alexander Hamilton), Hamilton notes: "[T]he President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,--all which, by the Constitution under consideration, would appertain to the legislature." See also id. at No. 26, 164-171. Cf. C. Berdahl, War Powers of the Executive in the United States ch. V (1921).
  30. The Federalist No. 69 (Alexander Hamilton). During the Convention, Elbridge Gerry remarked that he "never expected to hear in a republic a motion to empower the Executive alone to declare war." 2 Records of the Federal Convention of 1787, at 318 (Max Farrand ed., 1937).
  31. The Articles of Confederation vested powers with regard to foreign relations in the Congress.
  32. 2 Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed., 1937).
  33. Jointly introducing the amendment to substitute "declare" for "make," Madison and Gerry noted the change would "leav[e] to the Executive the power to repel sudden attacks." Id. at 318.
  34. Connecticut originally voted against the amendment to substitute "declare" for "make" but "on the remark by Mr. King that 'make' war might be understood to 'conduct' it which was an Executive function, Mr. Ellsworth gave up his opposition, and the vote of Connecticut was changed." Id. at 319. The contemporary and subsequent judicial interpretation was to the understanding set out in the text. Cf. Talbot v. Seeman, 5 U.S. (1 Cr.) 1, 28 (1801) (Chief Justice John Marshall stated: "The whole powers of war being, by the Constitution of the United States, vested in congress, the acts of that body alone can be resorted to as our guides in this inquiry."); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866).
  35. Messages and Papers of the Presidents 326, 327 (J. Richardson ed., 1896).
  36. 7 Works of Alexander Hamilton 746-747 (J. Hamilton ed., 1851).
  37. 2 Stat. 129, 130 (1802).
  38. Congress need not declare war in the all-out sense; it may provide for a limited war which, it may be, the 1802 statute recognized. Cf. Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800).
  39. Prize Cases, 67 U.S. (2 Bl.) 635 (1863).
  40. 12 Stat. 326 (1861).
  41. Prize Cases, 67 U.S. (2 Bl.) 635 (1863).
  42. Id. at 669.
  43. Id. at 682.
  44. The Protector, 79 U.S. (12 Wall.) 700, 702 (1872).
  45. The controversy, not susceptible of definitive resolution in any event, was stilled for the moment, when in 1973 Congress set a cut-off date for United States military activities in Indochina, Pub. L. No. 93-52, 108, 87 Stat. 134, and subsequently, over the President's veto, Congress enacted the War Powers Resolution, providing a framework for the assertion of congressional and presidential powers in the use of military force. Pub. L. No. 93-148, 87 Stat. 555 (1973), 50 U.S.C. §§ 1541-1548. See ArtII.S.2.C.1.10 1.10 Use of Troops Overseas and Congressional Authorization.
  46. In Atlee v. Richardson, 411 U.S. 911 (1973), aff'g 347 F. Supp. 689 (E.D. Pa., 1982), the Court summarily affirmed a three-judge court's dismissal of a suit challenging the constitutionality of United States activities in Vietnam on political question grounds. The action constituted approval on the merits of the dismissal, but it did not necessarily approve the lower court's grounds. See also Massachusetts v. Laird, 400 U.S. 886 (1970) (denying leave to file complaint); Holtzman v. Schlesinger, 414 U.S. 1304, 1316, 1321 (1973) (actions of individual justices on motions for stays). The Court has consistently denied certiorari in cases on its discretionary docket concerning this issue.
  47. E.g., Velvel v. Johnson, 287 F. Supp. 846 (D. Kan. 1968), aff'd sub nom. Velvel v. Nixon, 415 F.2d 236 (10th Cir. 1969), cert. denied, 396 U.S. 1042 (1970); Luftig v. McNamara, 252 F. Supp. 819 (D.D.C. 1966), aff'd 373 F.2d 664 (D.C. Cir. 1967), cert. denied, 389 U.S. 945 (1968); Mora v. McNamara, 387 F.2d 862 (D.C. Cir. 1967), cert. denied, 389 U.S. 934 (1968); Orlando v. Laird, 317 F. Supp. 1013 (E.D.N.Y. 1970), and Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970), consolidated and aff'd, 443 F.2d 1039 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971); Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973).During the 1980s, based on the political question doctrine and certain other discretionary doctrines, courts were not receptive to suits, many by Members of Congress, seeking a declaration of the President's powers. See, e.g., Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982) (military aid to El Salvador), aff'd, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984); Conyers v. Reagan, 578 F. Supp. 324 (D.D.C. 1984) (invasion of Grenada), dismissed as moot, 765 F.2d 1124 (D.C. Cir. 1985); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (reflagging and military escort operation in Persian Gulf), aff'd. No. 87-5426 (D.C. Cir. 1988); Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990) (U.S. Saudia Arabia/Persian Gulf deployment).
  48. For further discussion, see Art. II, Sec. 2, Cl. 1: Historical Background on Commander in Chief Clause to Art. II, Sec. 2, Cl. 1: Military Commissions.
  49. 12 U.S. (8 Cr.) 110, 126 (1814). See also Conrad v. Waples, 96 U.S. 279, 284 (1878) ("[U]ntil some provision was made by law, the courts of the United States could not decree a confiscation of his property, and direct its sale.").
  50. Brown, 12 U.S. at 125 ("The constitution of the United States was framed at a time when this rule, introduced by commerce in favor of moderation and humanity, was received throughout the civilized world. In expounding that constitution, a construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it does not possess elsewhere, and which would fetter that exercise of entire discretion respecting enemy property, which may enable the government to apply to the enemy the rule that he applies to us."). See also Cent. Union Tr. Co. of New York v. Garvan, 254 U.S. 554, 566 (1921) ("There can be no doubt that Congress has power to provide for an immediate seizure in war times of property supposed to belong to the enemy . . . ."); United States v. Chem. Found., 272 U.S. 1, 11 (1926) ("Congress was untrammeled and free to authorize the seizure, use or appropriation of such properties without any compensation to the owners."); Silesian Am. Corp. v. Clark, 332 U.S. 469, 475 (1947) ("There is no doubt but that under the war power, as heretofore interpreted by this Court, the United States, acting under a statute, may vest in itself the property of a national of an enemy nation. Unquestionably to wage war successfully, the United States may confiscate enemy property.").
  51. Miller v. United States, 78 U.S. (11 Wall.) 268, 304-305 (1871); Stoehr v. Wallace, 255 U.S. 239, 245 (1921) ("That Congress in time of war may authorize and provide for the seizure and sequestration through executive channels of property believed to be enemy-owned, if adequate provision be made for a return in case of mistake, is not debatable."). But see Cities Serv. Co. v. McGrath, 342 U.S. 330, 335 (1952) (holding that confiscation of an instrument of debt could, in the event of a foreign court judgment effecting effecting a double recovery against them, give rise to a claim against the United States for a 'taking' of their property within the meaning of the Fifth Amendment).
  52. Miller, 78 U.S. at 305 (citing The Venus, 12 U.S. (8 Cranch) 253 (1814)); Juragua Iron Co. v. United States, 212 U.S. 297, 306-07 (1909) ("A neutral owning property within the enemy's lines holds it as enemy property, subject to the laws of war; and, if it is hostile property, subject to capture.") (quoting Young v. United States, 97 U.S. 39, 60 (1877)).
  53. Miller, 78 U.S. at 306; Kirk v. Lynd, 106 U.S. (16 Otto) 315, 316, (1882) ("All private property used, or intended to be used, in aid of an insurrection, with the knowledge or consent of the owner, is made the lawful subject of capture and judicial condemnation; and this, not to punish the owner for any crime, but to weaken the insurrection.").
  54. The Siren, 80 U.S. (13 Wall.) 389, 393 (1871).
  55. The Paquete Habana, 175 U.S. 677, 700, 711 (1900).
  56. Act of Aug. 6, 1861, ch. 60, 12 Stat. 319.
  57. Act of Mar. 3, 1863, ch. 90, 12 Stat. 762.
  58. The Hampton, 72 U.S. (5 Wall.) 372, 376 (1867).
  59. Id.
  60. The Paquete Habana, 175 U.S. at 711.