War Powers

The Power to Wage War is the Power to Wage War Successfully: A Centennial Essay

By Matthew Waxman
Tuesday, September 5, 2017, 8:30 AM

One hundred years ago today—on September 5, 1917—Charles Evans Hughes famously argued that “the power to wage war is the power to wage war successfully.” In a recent Columbia Law Review article, I detail the story behind this statement and how Hughes wrestled with questions that flowed from it. Here is a brief version of that story and some of the reasons it remains important today.

The Context

Hughes’s war powers axiom—that the power to wage war is the power to wage war successfully—has been widely cited for the past century in court decisions and briefs, executive branch opinions, and legal scholarship. But when Hughes uttered those words that day, he was not writing as Chief Justice (he served from 1930-1941) or as Associate Justice (he served 1910-1916). Nor was he speaking as Secretary of State (he served from 1921-25) or the many other public offices he held. He was speaking as a private member of the bar.

Charles Evans Hughes, circa 1917

Five months after the United States declared war on the side of the Allies against the Central Powers and about a year after he narrowly lost the 1916 presidential election to the incumbent Woodrow Wilson, Hughes delivered a speech to the American Bar Association’s annual meeting in Saratoga Springs, New York. Hughes had stepped down from the Supreme Court in June 1916 to run as the Republican challenger to Wilson. Titling his speech “War Powers Under the Constitution” (reprinted here), Hughes now defended expansive government powers invoked by Wilson and the Democrat-controlled Congress to wage modern, industrial-age and industrial-scale warfare.

It is hard to imagine today a speech by any modern figure about major constitutional issues that would carry the weight of Hughes’s. The New York Times covered the speech on page one, and many other major newspapers across the country reprinted the speech in its entirety or summarized it for the public. It didn’t hurt that, in the later words of Justice Robert Jackson, Hughes “look[ed] like God and talk[ed] like God.” But Hughes carried personal authority and credibility on constitutional issues that would be hard for anyone—especially in a private capacity—to match today.

Headline from front page of New York Times, Sept. 6, 1917

The Argument

Today’s biggest constitutional war powers controversies tend to be about inter-branch questions, especially whether the President or Congress has primary responsibility for the initiation of military action. In 1917, there was no serious doubt that only Congress could take the nation formally into the Great War, and in any event, Wilson sought and received Congress’s war declaration in April of that year.

At that time, the most contentious and consequential war powers questions were not about the President at all. They were about the scope of Congress’s powers in wartime.

When Hughes proclaimed that “the power to wage war is the power to wage war successfully,” he was not uttering a mere political platitude but making a detailed Article I argument about legislative power: namely, that by virtue of the Necessary and Proper Clause, Congress’s powers expanded during war as necessary to provide the means needed for victory. If required by wartime exigency, Article I powers were to be read more expansively than during peacetime. Meanwhile, restrictions on those powers—including principles of non-delegation (the idea that Congress couldn’t transfer its policy-making function to the President) and most basic rights (the most significant at that time being economic rights, such as freedom of contract)—were to be relaxed or read narrowly. Hughes described in his notes these flexible, elastic wartime features as part of the “Genius of our institutions.”

 

Hughes’s handwritten notes outlining this argument, found among extensive research notes for the September 1917 war powers speech. Source: Charles Evans Hughes Papers, Columbia University Rare Book & Manuscript Library, Box 56.

For the last century, this basic view—that the Constitution bends to meet wartime needs—has been accepted by all three branches. At the time Hughes spoke, however, he was pushing against two powerful schools of thought in American constitutional thinking.

One of those contrary schools viewed war powers as “extra-constitutional”: the Constitution didn’t need to accommodate wartime needs because its requirements would naturally be suspended entirely in wartime. Hughes, by contrast, lodged all necessary war powers firmly within the Constitution.

Another school viewed congressional powers as fixed in both war and peace: the Constitution already built in all the powers needed to wage war effectively, and the dangers of interpreting them fluidly were too great to allow. Rejecting this rigid view, Hughes saw war powers as evolving, because, simply, warfare itself inevitably evolved. As he said in concluding his ABA speech:

It has been said that the Constitution marches. That is, there are constantly new applications of unchanged powers, and it is ascertained in novel and complex situations, the old grants contain, in their general words and true significance, needed and adequate authority. So, also, we have a fighting constitution….

In the end, Hughes’s view won out. In World War I, our “fighting Constitution” was marching at a very fast clip. No single document better shows it.

The Controversies

In constitutional law discussions, World War I is today mostly associated with free speech restrictions. Most notably, after Congress passed the Espionage Act of 1917 and the Sedition Act of 1918, the Wilson Administration aggressively prosecuted hundreds of cases against publishers and dissenters for allegedly interfering with the war effort.

Hughes doesn’t say a word in his ABA war powers speech about the Espionage Act, though it had been enacted several months earlier after considerable debate. He doesn’t say anything about free expression for that matter, on which there was little judicial precedent at the time.

Instead, the two big issues that Hughes addresses—the ones at which his “power to wage war successfully” axiom aimed—were the national draft and extensive economic regulation. These were radical expansions of federal government power based on Congress’s war powers. They were domestic national powers deemed necessary to waging modern combat thousands of miles away. And today, following the New Deal-era expansion of Congress's power over the domestic economy, they are constitutionally uncontroversial even in peacetime.

As to the draft, throughout American history to that point there had been significant doubt whether the federal government could conscript soldiers and additional doubt about whether those conscripted soldiers could be sent overseas. The strongest objection was not one based on individual rights. It was a structural argument about federalism. Involuntary conscription, ran the argument, was an integral aspect of traditional state militia powers protected by the Constitution’s Militia Clauses in Article I. Those clauses give states the power to maintain and train well-regulated militias (historically made up heavily of local conscripts) that could be called into service by Congress for limited purposes. To allow the federal government to directly conscript able-bodied men would nullify these state rights and protections.

When it entered the war in April 1917—a war that had been devouring European soldiers at an unprecedented pace—the United States had only a few hundred thousand troops, mostly on the Mexican border. The political leadership knew that only a draft, and more specifically a “selective service” system, could efficiently grow that force by an order of magnitude while also keeping workers of critical industries in their jobs on the home front.

“Send Off” Parade in Front of New York Public Library, August 30, 1917. A week before his ABA war powers speech, Hughes stood there with Teddy Roosevelt watching a similar parade, while serving as chairman of the New York City District Draft Appeals Board.

Until World War I a national draft was constitutionally suspect, but for Hughes its readily apparent military necessity—he had watched the European belligerents rely on it for several years—made its constitutionality an easy matter: “There is no limitation upon the authority of Congress to create an army and it is for the President as Commander-in-Chief to direct the campaigns of that army wherever he may think they should be carried on.” The immediate needs of modern warfare had displaced early-Republic faith in state militias as safeguards of constitutional order.

Moving from the question of the draft to that of economic regulation and delegation, Hughes defended on war powers grounds new federal authority that was, in Clinton Rossiter’s words, “infinitely more . . . than had ever been given to an American President. In absolute terms, it far exceeded Lincoln’s, for it extended control of the nation’s economic life that would have caused a revolution in 1863.”

Prior to Hughes’s war powers speech, Congress had passed several far-reaching laws committing to President Wilson vast authority. Among the most famous was the Food and Food Control Act (or Lever Act), which gave the President broad powers “to make such regulations and to issue such orders as are essential” to assure adequate and equitable supply and distribution of those critical resources. This went against peacetime limitations on congressional power. It went against peacetime limits on congressional delegation of policy discretion. And it went against peacetime understandings of Fifth and Fourteenth Amendment rights to be free from regulation of “private” economic activities.

But Hughes argued that these peacetime limitations on Congress’s powers must give way to wartime needs. Congress, he argued, “is confided the power to enact whatever legislation is necessary to prosecute the war with vigor and success.” In these ways, Hughes’s flexible and adaptive interpretation of the war power addressed the major problem he saw in September 1917: how to mobilize the entire national industrial economy for modern, expeditionary war.

The Aftermath

In addressing one constitutional problem, though, Hughes created another that echoes today. For him, the elasticity of the power to wage war successfully was justified on two confident assumptions: that clear lines exist between wartime and peacetime and that following successful war there would be a reversion to constitutional normality. War-waging power would be only temporary.

But what if it wasn’t?

On November 11, 1918, the Allies and Germany signed the Armistice that ended the remaining fighting on the Western Front. President Wilson declared that day to Congress, “The war thus comes to an end, for, having accepted these terms of armistice, it will be impossible for the German command to renew it.” Mission accomplished.

Except the ultimate mission wasn’t accomplished. Although Germany had been crushed militarily at that point, President Wilson had taken the country to war with a boldly ambitious set of international security and diplomatic aims, encapsulated as “mak[ing] the world safe for democracy.” Wilson viewed as essential to American security the replacing of traditional European balance-of-power politics with a new system of diplomatic rules, ideals, and collective responses to threats. This ambitious, global agenda greatly complicated the task of determining when some baseline level of security was achieved and, therefore, when the expansive war powers of Congress and the President were required to retract back to peacetime form.

For the next couple of years, Hughes repeatedly spoke out, wrote—and litigated—against the government for war powers overreach. I detail in the longer version of this story a fascinating episode in which Hughes, as a private attorney, unsuccessfully sued the federal government on behalf of major cable companies, whose undersea cables the Wilson Administration seized and controlled after the Armistice based on a wartime measure authorizing such action during the war. What makes this case so special is that it featured a dramatic courtroom debate across the bench in the Southern District of New York between Hughes and Judge Learned Hand—two of the greatest legal minds of the time—over how to measure the end of war. Was it based on readily observable military conditions, or did it depend on a political assessment that war aims had been achieved?

  

New York Times headline, Dec. 28, 1918, p. 5

Thanks to an extensive New York Times report, we have a good record of their exchange. (Note that the case turned not only on constitutional grounds but statutory ones, based on a reading of Congress’s resolution authorizing government control of communication systems). In the following excerpted exchange with Judge Hand, it’s best to read Hughes’s lines in a deep voice that one might imagine coming from, say, a burning bush:

Hughes: The question is not whether the war had ended, in the sense of a restoration of amity between peoples. It is not a question whether the war had come to a termination, as a state of war, whether or not the war had ended in its technical, legal sense. The danger which Congress contemplated, and which alone constituted the condition upon which the President was authorized to exercise this very important power, that danger, we submit, no longer existed [at the time of the cable seizure].

Hand: But the security or defense of the nation depends, does it not, upon the objects for which the war was fought, and until those objects have been ascertained authoritatively by a peace, it cannot be said that the security and defense is established. I take it a war is not for the sake of fighting, but for the sake of the purposes for which the parties have been engaged. The termination of fighting by no means is an indication that the security and defense of the nations, for which they went to war, has been achieved. Is that not so?

Hughes: I think that what may be achieved, in the sense of the final results of the war, will probably not be determined during our lifetime. … What Congress, faced with the practical necessities of actual war, had in mind was a condition threatening our national security, which, as every man, woman, and child in the United States understood, during the continuance of hostilities, and until Germany was defeated, was actually threatened by the continuance of the war. It was not a danger in the sense of a nebulous regard for possible policies, which could not be vindicated and carried through by force, that Congress had in mind. It was an actual state of applied force that we were looking to in arming the President with these extraordinary powers….

Hughes (cont.): We are not speaking of any possible armistice. We are speaking of the armistice that was actually signed and conditions that were actually imposed. As the President told Congress, and as it was known as soon as those conditions were revealed, the armistice actually signed reduced our enemies, Germany and Austria, to a state of absolute helplessness. As the President said, they could not have resumed the warfare…. He knew that the war hadn’t ended in a technical legal sense. But he knew that the potency of that war had gone, so far as it was directed against the peace and security of our people…

Hand: The purposes for which the war was successfully terminated surely are to be found only in the terms of peace which are eventually established, and the security of the nation must be measured, and its defense must be measured, by the success with which the United States, in the end, the President and Congress, secure these purposes. Now, then, if so, surely all means necessary to the achievement of that final end are necessary to the security and defense of the nation.

In this exchange, Judge Hand thus turned Hughes’s axiom back on him: if the power to wage war is the power to wage war successfully, then success must be gauged not just by the absence of immediate danger but by reference to the ultimate political aims sought.

Hughes lost that case, and in a 1920 speech, he ramped up his warnings: “[W]e have seen the war powers, which are essential to the preservation of the nation in time of war, exercised broadly after the military exigency had passed and in conditions for which they were never intended.” He punctuated that alarm by declaring that “we may well wonder in view of the precedents now established whether constitutional government as heretofore maintained in this republic could survive another great war even victoriously waged.”

Yet in later years, Hughes appears to have reversed course. In my research on Hughes, I have yet to find a fully satisfactory answer to what allayed his worries about war termination. For in a series of 1927 Columbia University lectures, Hughes restated his basic arguments about war powers from 1917, without addressing the end-of-war issue, and in a 1934 opinion he wrote as Chief Justice about Depression-era state mortgage regulation, he doubled down on his “power to wage war is the power to wage war successfully” axiom by using it to help justify general emergency powers.

Part of the answer is political. Upon taking control of the White House in 1921, President Warren Harding pledged the return to “normalcy.” Hughes would serve as Harding’s Secretary of State, and Hughes negotiated the formal peace treaty with Berlin soon after the President signed Congress’s joint declaration ending the war in July 1921. Part of the answer is judicial. Around that same time, the Supreme Court staked out at least some role for the judiciary in policing the durational boundaries of war powers. But it remains somewhat of a mystery how Hughes reconciled his expansive theory of wartime legislative powers with the concern—so clearly illustrated in the cable seizure case—that they could and would be extended indefinitely.

Hughes retired from the Chief Justiceship in 1941, only months before the official American entry into World War II. An irony is that one of the most influential American jurists on constitutional war powers never actually ruled on a major war powers case.

The Significance Today

Studying Hughes’s 1917 speech a century later, one is struck by both its timeless and its anachronistic features. The specific controversies—the draft and economic regulation—are of a bygone era, but the central claim that our “fighting constitution” confers flexible powers to “wage war successfully” still holds. For those interested in more detail, my complete article on Hughes’s speech can be found here. I’ll conclude here with a few thoughts on the speech’s significance today, a century after Hughes delivered it.

Today’s war powers controversies are rarely about the extent and limit of Congress’s powers, as they were in 1917. They are mostly about the scope of the President’s unilateral war powers. One reason for this shift in emphasis is the growth of presidential power, especially since the early Cold War. But another reason, starkly apparent in reflecting on Hughes’s speech, is because Congress’s other powers—its non-war powers—have expanded so dramatically since World War I. All of the domestic economic regulations justified during World War I only as an exercise of constitutional war powers could, by the end of World War II, have been justified under the commerce power—even in peacetime. Doctrines and the exercise of non-war emergency legislative powers have expanded, too. Since World War I, Congress has enacted hundreds of emergency power provisions that the President may activate by proclaiming a national emergency, whether or not the country is in war.

Looking back, World War I was probably the pivotal moment in American history when the differential between the federal government’s war-specific powers and its normal, peacetime powers reached its apex. Once warfare became “total” in the early twentieth century, legislative war powers became the basis for completely transforming a largely laissez faire system into a centrally administered statist one and for subordinating a state militia system to the federal government’s authority to compel directly anybody into military service. War has continued to become more complex, but legislative war powers have not had to keep up in part because other constitutional powers now do so much work. Reading Hughes’s speech today is an important reminder that war no longer opens much otherwise-locked legislative power.

I say “much,” because it does open some. The wars against al Qaida and ISIS in recent decades have reopened the issue of the substantive scope of legislative war powers. In particular, they have raised questions (and sometimes citations to Hughes’s axiom) such as the scope of wartime constitutional powers to detain enemy fighters without trial or to try them in military commissions.

On the one hand, these claimed powers seem exceptional because the war against sprawling transnational terrorist organizations lacks the organizational, geographic, and temporal boundaries usually associated with modern warfare. On the other hand, these powers are remarkably ordinary and limited. The context in which the government seeks to use these powers is extraordinary, but the measures themselves are quite traditional to military conflict, much more akin to the wartime powers that the constitutional framers envisioned than those Hughes defended in waging World War I.

Finally, the ongoing war with transnational terrorist groups has made Hughes’s post-Armistice concerns about indefinitely protracted war powers seem prophetic. One hears a faint echo of Hughes’s cable-seizure-case arguments in today’s arguments against perpetual wars with terrorists. And one hears Judge Hand’s echo in the words of my Columbia Law School colleague Philip Bobbitt when he recently wrote: “Victory is not simply the defeat of the enemy; it is the achievement of the war aim.” (Terror and Consent, p. 187). The challenge of indefinite war against terrorist organizations is not simply one of attaining a successful military outcome. As with determining whether World War I had been “wage[d] successfully,” it is also a matter of determining politically what a victory looks like.

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