The Sweeping Domestic War Powers of Congress

• Author: Prakash, Saikrishna Bangalore

[C]ertain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them- in other words, that the constitution is not in it's [sic] application in all respects the same, in cases of Rebellion or invasion . . . as it is in times of profound peace and public security.

- Abraham Lincoln1

Introduction

From time to time, Americans (Supreme Court justices included) have insisted that the Constitution is not a suicide pact.2 Undoubtedly it is not. While the Founders were not starry-eyed statesmen and must have known that all regimes eventually expire, they surely did not suppose that the regime they erected would quickly meet the fate of the "perpetual" Articles of Confederation.3 Those who made the Constitution law erected a "more perfect Union,"4 one that was meant to "endure for ages."5 The difficulty lies in discerning which of the charter's features were meant to help it outlast emergencies. After all, a cursory reading of the Constitution intimates extremely limited federal emergency authority. As Justice Jackson noted, the Constitution lacks anything resembling Article 48 of the Weimar Republic;6 it never expressly authorizes a raft of crisis measures, much less suspension of the Constitution.7 Though the federal government can declare war,8 the subsidiary powers that come immediately to mind - authorizing war and commanding the use of force9 - do not seem to imply that Congress enjoys a broad wartime power. Two provisions in Article I mention invasions and rebellions, namely the Habeas and Militia Clauses.10 But the former limits federal power, rather than granting authority that becomes available during invasions or rebellions.11 And while the latter clause grants power, it does no more than authorize the federal government to summon the militias to thwart invaders and rebels.12 Finally, though the Guarantee Clause obliges the federal government to defend the states against invasion and "domestic Violence,"13 it conveys no power to counter invasions or rebellions.14

Hence we know with certainty that the federal government can use the militia to suppress invasions and rebellions and that the national regime has duties to the states with respect to both. Furthermore, despite the absence of any explicit power to suspend the privilege of the writ, there is an unshakable sense that the federal government may suspend that liberty. Beyond these basic conclusions, we are left with seemingly intractable questions. Do the Habeas and Militia Clauses imply that in cases of invasions and rebellions, the federal government can do nothing more than suspend the privilege of habeas corpus15 and summon the militias, meaning that military trial of civilians and military rule are unconstitutional? In other words, does the expressio unius maxim suggest that the Constitution's list of permissible emergency measures is exclusive? And if the federal government can do more than suspend the privilege and summon the militias during a rebellion or invasion, where does the Constitution authorize these additional measures and what else may be done? Even the question of where the federal government gets its authority to suspend the writ of habeas corpus seems to pose a difficulty. If in foreign affairs the Constitution is a "strange, laconic document," full of "troubl[ing] . . . lacunae" as Louis Henkin observed,16 the emergency Constitution seems virtually mute, save for the occasional check on disquieting powers that seem to exist only by implication.17

In fact, the Constitution does not neglect invasions and rebellions, much less suggest federal impotence during them. The perceived neglect stems, in part, from the obsession with the Habeas Clause and the sense that it is the emergency provision in the Constitution. This is misguided. The Habeas Clause does not begin to tell us the contours of federal emergency authority. Rather it is a limitation on that power, whatever that power's scope. Gauging federal crisis power by focusing on the Habeas Clause is as backward as gauging the scope of federal power solely by reference to Article I, Section 9 and the Bill of Rights. The hyperfocus on the Habeas Clause had caused us to miss the forest for a single tree.

Formed on the heels of two emergencies, the Revolutionary War and Shays's Rebellion, the Constitution is not radically deficient when it comes to domestic wars. To the contrary, it unquestionably augmented the national government's powers during emergencies, but it did so in ways lost to modern eyes. The Constitution addresses emergencies. We just need to decode it to see how.

When it comes to invasions and rebellions ("domestic wars"), the case for expansive congressional power is as uncomplicated as it is obscured. First, the Constitution's backdrop hints at broad domestic wartime authority for Congress.18 Backdrops matter because context matters.19 The Constitution was written against the background of state governments that endured the Revolutionary War via massive delegations of power to the executive and the short-term suppression of civil liberties. Similarly, the Continental Congress helped the nation defeat the British via its authorization of indefinite detentions, trial of civilians before military courts, and a temporary dictator. In both the states and the national government, legislatures were sovereign in the Schmittian sense because they decided when the state of exception existed and hence served as the gatekeepers of exceptional powers.20 When cautious, legislatures might cede the power of the purse or permit the taking of private property. In more perilous times, they might authorize indefinite detention, military trials, and military rule. But the prerogative has always been with the legislature.

Second, the Constitution never hints that it departs from this established regime of broad legislative authority in emergencies. It never repudiates the emergency measures that served so well during the Revolutionary War. It never declares that during domestic wars Congress can neither suspend civil liberties nor convey sweeping powers to the executive. Although the Habeas Clause may seem something of an exception, in fact it imposes a rather narrow constraint, one that makes clear that Congress may suspend at least one civil liberty during domestic wars.

Third, the Constitution plainly augmented federal crisis power. Whereas Congress previously lacked power to suppress rebellions, the Constitution clearly granted such power. Moreover, the addition of the Necessary and Proper Clause gave further textual grounding to legislative measures designed to prevail in domestic wars. Laws designed to crush rebellions and repulse invasions may be necessary and proper for carrying into execution the federal government's powers. Congress may suspend habeas corpus during an invasion or rebellion not because Article I, Section 9 implies that there is such a federal power, but because doing so is necessary and proper for implementing federal powers.21 Similarly, Congress may authorize military trial of civilians or declare martial law during an invasion and rebellion when doing so is necessary and proper for executing federal powers. Finally, Congress may suspend some individual rights when their suspension is necessary and proper for safeguarding the Constitution (and its system of rights) in the long run. The vital point is that federal powers will certainly not be carried into execution throughout the United States if rebels or invaders control some or all of the nation's territory.

Some scope limitations are in order. First, this Article focuses on domestic wars and says rather little about other sorts of crises, such as earth-quakes or foreign wars. But it does briefly discuss the possibility that Congress enjoys a power of "self-preservation." Second, the Article will not define "rebellion" or "invasion." Admittedly, any comprehensive theory about the emergency Constitution must specify what "invasion," "public danger," "domestic violence," "insurrection," and "rebellion" mean.22 Yet while such definitions would be valuable, they are unnecessary to evaluate the Article's limited claims about the scope of legislative power during such crises. Reasonable people can disagree about whether a rebellion or invasion exists23 even as they agree about the scope of federal power should either exist. Finally, the Article will not address whether the courts may second-guess either congressional judgments about the existence of an invasion or rebellion or the measures necessary to overcome either. While the arguments in favor of a sweeping domestic war power might be more palatable if they presume that courts could review the constitutionality of domestic war legislation, the claims made here do not turn on the availability of judicial review.

Part I suggests that the Constitution accommodates domestic wars and introduces the claim that the Constitution authorizes Congress to enact measures necessary to thwart invasions and rebellions. Part II brings to light early American practices that indicate the legislature's dominant role during domestic wars. Part III returns to the Constitution's text and argues that Congress has broad (but not unlimited) power in domestic wars and highlights early statutes supportive of that reading. Part IV considers what a broad congressional domestic war power means for the separation of powers, individual rights, and continuity in government.

1. An Accommodative Constitution that Empowers Congress in Crises

   On one view, the Constitution is relatively inflexible in that it does not authorize wholesale departures from its ordinary constraints. Call this the "Rigid Constitution." Under the Rigid theory, the federal government cannot, no matter the crisis, suspend rights like the right to a jury...