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War Powers

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Sunday, November 25, 2012 at 2:11 PM

This page discusses the distribution and scope of the war powers — including the powers to initiate, conduct, and end hostilities — among the branches of the United States government. It includes a chronological list of significant military engagements by the United States and links to U.S. legal documents and judicial decisions about these events.

Although the issues of covert action and domestic restrictions on civil liberties during war (e.g., detention or internment) are related, they are discussed in other pages.

Constitutional Sources of War Powers

The Constitution divides war powers between the legislative and executive branches. Article I of the the Constitution gives Congress the power:

      • “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Art. I, § 8, cl. 10.
      • “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Art. I, § 8, cl. 11.
      • “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Art. I, § 8, cl. 12.
      • “To provide and maintain a Navy.” Art. I, § 8, cl. 13.
      • “To make Rules for the Government and Regulation of the land and naval Forces.” Art. I, § 8, cl. 14.
      • “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Art. I, § 8, cl. 15.
      • “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 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.” Art. I, § 8, cl. 16.
      • “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.” Art. I, § 8, cl. 18.

The executive’s war powers stem primarily from three constitutional provisions:

      • Vesting clause, Art. II, § 1, cl. 1: “The executive Power shall be vested in a President of the United States of America.”
      • Commander-in-Chief clause, Art. II, § 2, cl. 1: “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 . . . .”
      • Take Care clause, Art. II, § 3: The President “shall take Care that the Laws be faithfully executed . . . .”

The Constitution extends judicial power “to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . .” Art. III, § 2, cl. 1.

The judiciary has jurisdiction over the many federal law issues that can arise in war, and has often ruled on matters related to war. However, the courts have generally declined to rule on which branch has the authority to initiate war, and relatedly, when war is lawful. Examples of such reticence include:

      • Schlesinger v. Holtzman, 414 U.S. 1321 (1973) (dismissing challenge to bombing in Cambodia on political question grounds)
      • Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000) (dismissing challenge to Kosovo bombing campaign on standing grounds)
      • Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990) (dismissing challenge to Gulf War on political question, equitable discretion, and ripeness grounds)
      • Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (dismissing challenge to reflagging operation in the Persian Gulf on equitable discretion and political question grounds)
      • Sanchez-Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983) (dismissing challenge to covert assistance to Nicaraguan Contras on political question grounds)
      • Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982) (dismissing challenge to military aid to El Salvador on political question grounds)

The Constitution explicitly prohibits the states from engaging in war, at least without congressional authorization:

      • No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” Art. I, § 10, cl. 1.
      • “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another state, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, § 10, cl. 3.

Military Interventions by the United States and Legal Documents About Military Action

This list focuses on significant uses of force by the United States. All dates are approximate. The list includes the five declared wars in which the United States has so far fought: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. It also includes uses of military force in many other situations, both authorized by Congress and unauthorized.

Additional events or documents may be added by contributors to the Lawfare Wiki Document Library.

18th Century

The Quasi-War: 1798-1800

Other 18th Century Statutes and Legal Documents About Military Action

Early Militia Statutes

Native American Relations

19th Century

First Barbary War: 1801-1805

Florida: 1811

      • Act to enable the President of the United States, under certain contingencies, to take possession of the country lying east of the river Perdido, and south of the state of Georgia and the Mississippi territory, and for other purposes (Act of Jan. 15, 1811, 3 Stat. 471)

Amelia Island and East Florida: 1812

War of 1812: 1812-1815

      • Act authorizing the President of the United States to accept and organize certain Volunteer Military Corps (Act of Feb. 6, 1812, ch. 21, 2 Stat. 676)
      • Declaring War between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories (Act of June 18, 1812, ch. 102, 2 Stat. 755)
      • Laying an embargo on all ships and vessels in the ports and harbours of the United States (Embargo Act of 1813) (Act of Dec. 17, 1813, ch. 1, 3 Stat. 88)
      • Brown v. United States, 12 U.S. (8 Cranch) 110 (1814) (scope of War of 1812 declaration of war)

The Seminole Wars: 1814-1819, 1835-1842, 1855-1858

      • Act authorizing the President of the United States to accept the service of volunteers, and to raise an additional regiment of dragoons or mounted riflemen (Act of May 23, 1836, ch. 80, 5 Stat. 32)

Second Barbary War: 1815-1816

East and West Florida: 1819

Africa: 1820-23

Cuba: 1822-1825

Mexico: 1844

Mexican-American War: 1846-1848

Nicaragua: 1854

      • Durand v. Hollins, 8 F. Cas. 111 (C.C.S.D.N.Y. 1860) (bombardment of Greytown, Nicaragua)

Paraguay: 1859

Civil War: 1861-1865

      • Presidential Proclamation No. 3 of 1861, Apr. 15, 1861, reprinted in 12 Stat. 1258 (calling forth the militia; convening an extraordinary session of Congress)
      • Presidential Proclamation No. 4 of 1861, Apr. 19, 1861, reprinted in 12 Stat. 1258 (declaring a blockade of the ports of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas)
      • Presidential Proclamation No. 5 of 1861, Apr. 27, 1861, reprinted in 12 Stat. 1259 (extending the blockade to the ports of Virginia and North Carolina)
      • President Abraham Lincoln’s Special Session Message, July 4, 1861 (explaining actions in response to attack on Fort Sumter)
      • Act to authorize the Employment of Volunteers to aid in enforcing the Laws and protecting Public Property (Act of July 22, 1861, ch. 9, 12 Stat. 268)
      • Act to provide for the Suppression of Rebellion against and Resistance to the Laws of the United States, and to amend the Act entitled An Act to provide for calling forth the Militia to execute the Laws of the Union, &c., passed February twenty-eight, seventeen hundred and ninety-five (Act of July 29, 1861, ch. 25, 12 Stat. 281)
      • Act to increase the Pay of the Privates in the Regular Army and in the Volunteers in the Service of the United States, and for other Purposes (Act of Aug. 6, 1861, ch. 63, § 3, 12 Stat. 326, 326) (affirming that “all the acts, proclamations, and orders of the President of the United States after the fourth of March, eighteen hundred and sixty-one, respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made valid . . . .”)
      • The Prize Cases, 67 U.S. (2 Black) 635 (1863) (concluding that the President had authority to blockade the ports of the rebelling southern states)
      • Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (concluding that civilian citizens could not constitutionally be tried by military commissions when the federal courts were open and martial law was not in effect)
      • Presidential Proclamation No. 1 of 1866, Apr. 2, 1866, reprinted in 14 Stat. 811 (declaring the “insurrection . . . at an end” in most southern states)
      • Presidential Proclamation No. 4 of 1866, Aug. 20, 1866, reprinted in 14 Stat. 814 (declaring the “insurrection . . . at an end” in Texas)
      • The Protector, 79 U.S. (12 Wall.) 700 (1871) (concluding that presidential proclamations determined the beginning and ending dates of the Civil War, at least “[i]n the absence of more certain criteria”)

Mexico: 1873-1896

Spanish-American War: 1898

China: 1900

Other 19th Century Statutes and Legal Documents About Military Action

Militia

Native American Relations

Piracy

Property: Protection of Property and Indemnification for Losses

Slavery

Trade

Use of the Military for Civilian Law Enforcement

      • Act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes (Posse Comitatus Act) (Act of June 18, 1878, ch. 263, § 15, 20 Stat. 145, 152), current version at 18 U.S.C. § 1385, exceptions at 10 U.S.C. §§ 333, 371-372

20th Century

World War I: 1914-1919

World War II: 1939-1945

      • Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same (Joint Resolution of Dec. 8, 1941, ch. 561, 55 Stat. 795)
      • Declaring that a state of war exists between the Government of Germany and the Government and the people of the United States and making provision to prosecute the same (Joint Resolution of Dec. 11, 1941, ch. 564, 55 Stat. 796)
      • Declaring that a state of war exists between the Government of Italy and the Government and the people of the  United States and making provision to prosecute the same (Joint Resolution of Dec. 11, 1941, ch. 565, 55 Stat. 797)
      • Declaring that a state of war exists between the Government of Bulgaria and the Government and the people of the United States and making provisions to prosecute the same (Joint Resolution of June 5, 1942, ch. 323, 56 Stat. 307)
      • Declaration that a state of war exists between the Government of Hungary and the Government and the people of the United States and making provisions to prosecute the same (Joint Resolution of June 5, 1942, ch. 324, 56 Stat. 307)
      • Declaring that a state of war exists between the Government of Rumania and the Government and the people of the United States and making provisions to prosecute the same (Joint Resolution of June 5, 1942, ch. 325, 56 Stat. 307)
      • Ex parte Quirin, 317 U.S. 1 (1942) (concluding that an unlawful enemy combatant captured in the United States during war time and charged with violating the laws of war could constitutionally be tried by a congressionally authorized military commission, even if the combatant was a U.S. citizen)
      • Order Authorizing the Secretary of War to Prescribe Military Areas, Exec. Order 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942)
      • Act to provide a penalty for violation of restrictions or orders with respect to persons entering, remaining in, leaving, or committing any act in military areas or zones (Act of Mar. 21, 1942, ch. 191, 56 Stat. 173)
      • Korematsu v. United States, 323 U.S. 214 (1944) (upholding the constitutionality of Executive Order 9066, pursuant to which the United States excluded Japanese-Americans from the West Coast area, and imposed curfews and/or detention in relocation centers)
      • Ex parte Endo, 323 U.S. 283 (1944) (concluding that the War Relocation Authority, a civilian agency, lacked power to detain citizens concededly loyal to the United States)
      • Ludecke v. Watkins, 335 U.S. 160 (1948) (concluding that the President retained power under the Alien Enemy Act to order individuals removed from the country until the political branches declare that war has ended, and stating that “[w]hether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended” was “a question too fraught with gravity even to be adequately formulated when not compelled”)

Korean War: 1950-1953

      • Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (concluding that the President’s executive order directing the Secretary of Commerce to seize steel plants owned by companies involved in labor disputes to prevent interruptions in war-related manufacturing exceeded his authority under the Constitution)

Taiwan: 1950-1955

Middle East: 1958

Vietnam War: 1964-1973

      • Joint Resolution to promote the maintenance of international peace and security in southeast Asia (Gulf of Tonkin Resolution) (Joint Resolution of Aug. 10, 1964, Pub. L. No. 88-408, 78 Stat. 384)
      • To Amend the Foreign Military Sales Act, and for other Purposes (Repeal of the Gulf of Tonkin Resolution), Pub. L. No. 91-672, § 12, 84 Stat. 2053, 2055 (1971)
      • Memorandum from Richard G. Kleindienst, Deputy Attorney Gen., for the Director, Bureau of the Budget, “Effect of a Repeal of the Tonkin Gulf Resolution” (Jan. 15, 1970)
      • Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971) (determining that the Gulf of Tonkin Resolution was sufficient to authorize or ratify military activity in Vietnam and declining to consider the constitutionality of military action in Vietnam on political question grounds)
      • Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971) (concluding that military action in Vietnam was not unconstitutional, in light of Congress’s “steady” support through appropriations and other actions, and thus finding it unnecessary to decide the “boundaries” of the political branches’ war powers)
      • Amendments to the Military Selective Service Act of 1967, Pub. L. No. 92-129, § 401, 85 Stat. 348, 360-61 (1971) (Mansfield Amendment) (declaring it to be “the sense of Congress that the United States terminate at the earliest practicable date all military operations of the United States in Indochina,” stating provisions for withdrawal, and urging the President immediately to initiate negotiations with the government of North Vietnam)
      • Armed Forces Appropriation Authorization of 1972, Pub. L. No. 92-156, § 601, 85 Stat. 423, 430 (1971) (Mansfield Amendment) (see above)
      • Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973) (dismissing challenge to the constitutionality of military action in Vietnam on political question grounds)
      • Making Continuing Appropriations for the Fiscal Year 1974, and for Other Purposes, Pub. L. No. 93-52, § 108, 87 Stat. 130, 134 (1973) (prohibiting funding “directly or indirectly combat activities by United States military forces in or over or from off the shores” of North or South Vietnam, Laos, or Cambodia, after August 15, 1973; ban subsequently extended by Pub. L. No. 93-124; similar prohibitions in Pub. L. Nos. 93-50 and 93-126)

Cambodia: 1970

The S.S. Mayaguez Rescue: 1975

      • Letter from Gerald Ford, President of the United States, to the Speaker of the House of Representatives and the President Pro Tempore of the Senate Reporting on United States Actions in the Recovery of the S.S. Mayaguez (May 15, 1975)

Iran: 1980

      • Letter from James Carter, Jr., President of the United States, to the Speaker of the House of Representatives and the President Pro Tempore of the Senate Reporting on the Operation (Apr. 26, 1980)
      • Dames & Moore v. Regan, 453 U.S. 654 (1981) (concluding that the President had authority to compel U.S. nationals to resolve claims against Iran through binding arbitration before a claims tribunal, because Congress was aware of and had acquiesced to the long-standing executive practice of settling claims by executive agreement and settlement was necessary to resolve a foreign policy dispute)

El Salvador: 1981

      • Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982) (dismissing challenge to military aid to El Salvador on political question grounds)

Lebanon: 1982-1983

Grenada: 1983

      • Letter from Ronald Reagan, President of the United States, to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the Deployment of United States Forces in Grenada (Oct. 25, 1983)
      • Conyers v. Reagan, 765 F.2d 1124 (D.C. Cir. 1985) (dismissing challenge to military action in Grenada on mootness grounds)

Libya: 1986

      • Letter from Ronald Reagan, President of the United States, to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the Gulf of Sidra Incident (Mar. 26, 1986)
      • Letter from Ronald Reagan, President of the United States, to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the United States Air Strike Against Libya (Apr. 16, 1986)

Persian Gulf: 1987-1988

      • Letter from Ronald Reagan, President of the United States, to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the United States Air Strike in the Persian Gulf (Sept. 24, 1987)
      • Ronald Reagan, President of the United States, Statement on United States Policy in the Persian Gulf (Sept. 24, 1987)
      • Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (dismissing challenge to reflagging operation in the Persian Gulf on equitable discretion and political question grounds)

Philippines: 1989

      • Letter from George H.W. Bush, President of the United States, to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on United States Military Assistance to the Philippines (Dec. 2, 1989)

Panama: 1989-1990

      • Letter from George H.W. Bush, President of the United States, to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on United States Military Action in Panama (Dec. 21, 1989)

Iraq: 1991

Somalia: 1992-1993

Iraq: 1993

Bosnia: 1994-2004

Haiti: 1994-1995

Liberia: 1996

Afghanistan and Sudan: 1998

      • Letter from William J. Clinton, President of the United States, to Congressional Leaders Reporting on Military Action Against Terrorist Sites in Afghanistan and Sudan (Aug. 21, 1998)

Yugoslavia: 1999 -

Other 20th Century Statutes and Legal Documents About Military Action

Maritime Relations

      • Act to increase the revenue, and for other purposes (Act of Sept. 8, 1916, ch. 463, § 806, 39 Stat. 756, 799-800) (authorizing the President, during a war in which the United States is not engaged, to detain the vessels of any belligerent country that discriminates against U.S. traffic, citizens, or businesses, or refuses equal treatment to U.S. ships or citizens, and to use any necessary military force to do so)

United Nations

War Crimes

War Powers

21st Century

Afghanistan and al Qaeda: 2001 -

Iraq: 2003-2011

Haiti: 2004

Libya: 2011

      • Memorandum from Caroline D. Krass, Principal Deputy Assistant Attorney Gen., U.S. Dep’t of Justice, to the Attorney General, “Authority to Use Military Force in Libya” (Apr. 1, 2011)
      • Testimony of Harold Hongju Koh, Legal Advisor, U.S. Dep’t of State, Before the Senate Foreign Relations Committee (June 28, 2011)
      • Letter from Barack Obama, President of the United States, to the Speaker of the House on the War Powers Resolution (June 15, 2011)
      • Kucinich v. Obama, 821 F. Supp. 2d 110 (D.D.C. 2011) (dismissing challenge to intervention in Libya on standing grounds)
      • Whitney v. Obama, 845 F. Supp. 2d 136 (D.D.C. 2012) (dismissing challenge to intervention in Libya on mootness grounds)

Other Resources

References

      • David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb — Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008)
      • David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb — A Constitutional History, 121 Harv. L. Rev. 941 (2008)
      • Amy Belasco, et al., Cong. Research Serv., RL33803, Congressional Restrictions on U.S. Military Operations in Vietnam, Cambodia, Laos, Somalia, and Kosovo: Funding and Non-Funding Approaches (2007), available at http://www.fas.org/sgp/crs/natsec/RL33803.pdf
      • Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047 (2005), available at http://www.uio.no/studier/emner/jus/humanrights/HUMR5503/h09/undervisningsmateriale/bradley_goldsmith.pdf
      • Curtis A. Bradley & Jack L. Goldsmith, Foreign Relations Law (4th ed. 2011) (especially ch. 4)
      • Jennifer K. Elsea & Richard F. Grimmett, Cong. Research Serv., RL31133, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications (2011), available at http://www.fas.org/sgp/crs/natsec/RL31133.pdf. This report contains an extensive list of domestic laws, including temporary emergency authorities, that are triggered or altered by war or national emergency. See pages 24-75.
      • Richard F. Grimmett, Cong. Research Serv., RL33532, War Powers Resolution: Presidential Compliance (2012), available at http://www.fas.org/sgp/crs/natsec/RL33532.pdf
      • Barbara Salazar Torreon, Cong. Research Serv., R42738, Instances of Use of United States Armed Forces Abroad, 1798-2013 (2013), available at http://www.fas.org/sgp/crs/natsec/R42738.pdf

Further Reading

      • Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair (1990)
      • Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001)

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