Under the United States Constitutionwar powers are divided. Under Article I, Section 8Congress has the power to:
How have the war and treaty powers in the Constitution been interpreted? This division was intended by the framers to ensure that wars would not be entered into easily: The Constitution's division of powers leaves the President with some exclusive powers as Commander-in-Chief such as decisions on the field of battleCongress with certain other exclusive powers such as the ability to declare war and appropriate dollars to support the war effortand 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. During the Civil War, the Court issued two significant opinions interpreting the war powers.
In the Prize Casesthe 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 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.
Inin 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.
Read an FBI account of the Nazi saboteur episode Inthe Supreme Court ruled in Hamdan v Rumsfield that President Bush exceeded his powers under the Constitution when he ordered that post 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 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 In Hamilton v Kentucky Distilleriesthe 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. 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 effect.
Louisiana-born Yaser Esam Hamdi On June 28,the Court ruled in two important cases challenging actions of the Bush Administration taken subsequent to the acts of terrorism.
In Hamdi v Rumsfeld, the Court ruled that Congress, in its Authorization for the Use of Military Force, had given the President the power to declare an American citizen an "enemy combatant" and deny him a trial in federal court.
Justice O'Connor, writing for the majority did, however, indicate that such persons cannot be held indefinitely and were entitled to contest the determination of their status with the assistance of counsel.
Justice Scalia, somewhat surprisingly dissented, arguing that the Constitution entitled Hamdi to a criminal trial. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights.
To be more safe, they, at length, become willing to run the risk of being less free. The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it. Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis-that, at the extremes of military exigency, inter arma silent leges.
Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.
Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent. In the other case, Rasul v Bush, the Court ruled 6 to 3 that aliens detained in Guatanamo, Cuba had the right to challenge their detention in American courts, in part because the United States had exclusive jurisdiction and control over the base in Cuba.
Inthe 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.The War Powers Resolution Congress's control over the armed forces is "structured" by appropriation, while the President commands; thus the act of declaring war should not be fetishized.
"Research Help: War Powers" (text). United States Government Library of . On June 3, , Representative Dennis Kucinich (D-Ohio) attempted to invoke the War Powers Act of and force President Barack Obama to withdraw American forces from NATO intervention efforts in Libya.
An alternative resolution floated by House Speaker John Boehner (R-Ohio) scuttled Kucinich's. War Powers Act: War Powers Act, law passed by the U.S.
Congress on November 7, , over the veto of Pres. Richard Nixon. The joint measure was called the War Powers Resolution, though the title of the Senate-approved bill, War Powers Act, became widely used.
The act sought to restrain the president’s ability to. laws passed in Germany in to deny civil rights to Jewish people.
banned Jewish people from holding government jobs, owning property, and voting in elections. Kristallnacht beginning of the Holocaust, tens of thousands of Jewish people rounded up and imprisoned in Germany and Austria.
The War Powers Resolution is sometimes referred to as the War Powers Act, its title in the version passed by the Senate. This Joint Resolution is codified in the United States Code ("USC") in Title 50, Chapter 33, Sections (external link).
War Powers Act of This act stated that the president must report to Congress within 2 days of putting troops in danger in a foreign country, and there would be .