The sweeping domestic war powers of Congress.

• Author: Prakash, Saikrishna Bangalore
• Position: III. The Domestic War Powers of Congress Under the New Constitution through Conclusion, with footnotes, p. 1367-1396

3. THE DOMESTIC WAR POWERS OF CONGRESS UNDER THE NEW CONSTITUTION

   With the advent of the Constitution, Congress gained a few important crisis powers and lost little. The new Congress could impose taxes and thus could support military and civilian establishments without petitioning the states for funds. (220) It also acquired authority over foreign commerce and could impose embargoes that might help retain domestic supplies during wars and rebellions. (221) In the past, Congress could do no more than implore the states to impose such restraints. (222) Finally, Congress could provide for summoning the state militias to combat invasions and rebellions. (223)

   Congress lost some authority over the military. First, it no longer could appoint commanders in chief because the president would be commander in chief of all branches of the military and all the militias, ex officio. (224) Second, Congress could not saddle the commander with officers not of his choosing, for the president appointed military officers, with the Senate wielding a check. (225) Third, though Congress retained sweeping authority to regulate the military, the president's veto was a substantial check on its exercise. (226) Lawmaking had gone from a unicameral process to something of a tricameral one.

   Despite these changes to congressional authority and the creation of an independent executive, the emergency Constitution shared the same basic structure as the many American frameworks that preceded it. The legislature (Congress) continued to enjoy the power to enact measures necessary to prevail in wars. By providing that Congress retained the powers to declare war, raise an army and navy, and regulate both, the Constitution implied that Congress could continue to pass laws needed to defeat foreign enemies. (227) Moreover, the grant of authority to use the militias to suppress rebellions hinted that Congress had acquired a general power to enact measures meant to subdue rebels.

   With the adoption of the Necessary and Proper Clause, powers that formerly rested on a broad reading of the power to "determinje] on ... war" now enjoyed the foundation of a clause meant to make clear that Congress enjoyed incidental powers. Under the "Sweeping Clause," Congress could enact laws necessary to prevail in invasions and rebellions, such as laws authorizing the concentration of government powers, the taking of property, and the suspension of habeas corpus and some other civil liberties.

   The augmentation of crisis powers likely stemmed from the deficiencies of the old regime. Under the Articles, Congress relied on the states to supply money and soldiers, a reliance that proved misplaced. The Continental Congress also lacked authority to help crush state rebellions. Some historians suppose that Shays's Rebellion spurred the Framers to propose vesting greater emergency powers in the national government and led some of the ratifiers to favor the Constitution. (228)

   1. The Case for a Domestic War Power

      The Constitution specifies that Congress has "[a]ll legislative Powers herein granted," (229) signifying that powers not granted by the Constitution to Congress do not rest with Congress. As noted earlier, some think the absence of an express "emergency power" suggests that the Constitution never cedes any crisis powers to Congress. This assessment is misguided, for it fails to heed Chief Justice Marshall's admonition that constitutional text should be reasonably or fairly construed rather than "strictly" construed. (230) We ought to give the text the reading that it most likely bears and not labor to read it in the narrowest way possible merely because such interpretations are possible. Additionally, as is now clear, the rigid reading of the Constitution fails to account for all that preceded it. If the rigid theory is correct, we must imagine that the Constitution granted the federal government less crisis authority than its predecessor wielded, even as that new regime acquired powers and duties with respect to rebellions. Prima facie, this is unlikely. (231)

      The far more plausible reading is that the federal government--Congress in particular--inherited the crisis powers of the Continental Congress. Had the Founders sought to diminish the national government's crisis powers, they would have adopted a Constitution that expressly provided as much to remove all doubts. Imagine provisions in Article I, Section 9 that explicitly barred the use of military courts to try civilians and prohibited the concentration of federal powers in time of war. Moreover, had the Founders meant to deny or disparage the idea of implicit crisis powers, they might have reintroduced a provision that specified that all powers not "expressly" enumerated were reserved to the states. (232)

      Additionally, had the Founders wished to discard or disclaim emergency powers, they would not have littered the Constitution with references to invasions and rebellions. The Habeas Clause supposes that the federal government may suppress both, for it envisions that the government may use indefinite detentions to counter both. (233) The Militia Clause provides that Congress may declare when the state militias may be called forth to thwart invaders and rebels, (234) thereby hinting that the Congress has a generic power to foil invaders and rebels. The Guarantee Clause imposes a federal duty with respect to invasions and rebellions, (235) thus implying at least some federal power to satisfy that duty. (236) The Preamble speaks of a desire by "We the People" to "insure domestic Tranquility [and] provide for the common defence," (237) two ends that seem to speak to rebellions and invasions, respectively. Because there is an explicit limit on domestic war powers (the Habeas Clause), a provision that authorizes the use of a particular means to combat invasions and rebellions (the Militia Clause), a duty to come to the aid of states during domestic wars (the Guarantee Clause), and an oblique reference to suppressing rebellions and invasions (the Preamble), the Constitution should be read as authorizing the national government to combat invasions and to thwart rebellions.

      Perhaps most importantly, had there been a desire to curb crisis powers, the Founders certainly would not have added an express clause--Article I, Section 8, Clause 18--that strengthens the textual case for crisis powers. The Necessary and Proper Clause bolsters the accommodative reading of the Constitution, for it makes what was implicit under the Articles of Confederation express. Whereas before someone could have caviled about the Continental Congress's enactment of crisis measures, the Necessary and Proper Clause neutralizes such claims. (238)

      Consider federal authority in the face of a military invasion. Despite the absence of any enumerated "repulsing" power, Congress indisputably has power to enact measures designed to thwart invaders. (239) Again, the Constitution repeatedly mentions invasions, signaling that they are a matter of federal concern. (240) In repelling invasions, the federal government is not limited to employing the militias and suspending habeas corpus merely because these measures are the only ones mentioned in connection with invasions. Instead, Congress, via the Necessary and Proper Clause, may take all useful and appropriate measures to thwart invaders. For good reason, no one doubts that Congress can use the army and navy to repel invaders even though neither branch of the armed forces is expressly mentioned in regard to invaders. Going further, Congress also may take property, delegate wartime discretion to the executive, and, if need be, impose martial law. (241) Under the right circumstances, such laws are necessary and proper to carry federal powers into execution because they help ensure that federal power meaningfully extends across the United States. Absent power to expel invaders, Congress could not ensure that federal powers--executive, legislative, and judicial--reigned supreme over the entire nation.

      Likewise, though Article I lacks an enumerated "crushing" power, Congress certainly may enact laws necessary to crush rebellions. The federal obligation to counter "domestic Violence," a duty triggered by a state request, suggests that the federal government has the power to subdue rebellions. (242) The express power to call the militias for the purpose of suppressing insurrections implies a general power to subdue them. (243) The Habeas Clause presupposes a generic power to quash rebels, as it merely constrains when Congress may adopt a particular measure (suspension of the privilege). (244) Again, in suppressing rebellions, the government is not limited to summoning the state militias and suspending habeas corpus merely because those are the only means expressly mentioned. Put another way, the partial enumeration of certain means of suppressing rebellions should not be construed to forbid the use of other means. During the Civil War, the federal government committed no constitutional wrong when it used the army and navy to suppress the Confederates because such use was necessary and proper to ensure that federal authority extended to all the states of the Union.

      The federal powers to repel invaders and crush rebellions can be conceived as two parts of a single "domestic war power," a power to defeat native and foreign enemies on American soil. (245) This domestic war power, arising out of the Necessary and Proper Clause and its interaction with the provisions related to invasions and rebellions, authorizes measures necessary and proper to implement federal authority throughout the nation. Because rebels and invaders may thwart the execution of federal powers, Congress may enact measures to defeat both.

      To return to the language of McCulloch, when it comes to thwarting rebellions and invasions there are legitimate ends--defeating invaders and rebels--that are clearly within the scope of the Constitution...