War Powers: The President, the Congress, and the Question of War

By Donald L. Westerfield | Go to book overview

In U.S. Senate Document No. 92-82 we have an explanation of what might have been referred to in that day as a "constitutional crisis" involving President Abraham Lincoln's blockade of our Southern ports: 26

Sixty years later the Supreme Court sustained the blockade of the Southern ports instituted by Lincoln in April 1861 at a time when the Congress was not in session. Congress had subsequently ratified Lincoln's action, so that it was unnecessary for the Court to consider the constitutional basis of the President's action in the absence of congressional authorization, but the Court nonetheless approved, five-to-four, the blockade order as an exercise of Presidential power alone, on the ground that a state of war was a fact. "The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact."

The Prize Cases illustrate the willingness of the Court to try to resolve any dispute in such a manner that there is no appearance of a reallocation of powers which may be thought to be vested in either Congress or the president by the Constitution. Having settled the question of whether a state of war could exist without formal declaration by Congress, the Prize Cases represent one of the major excursions of the judiciary into the war powers question.

Typically the Supreme Court has been steadfastly reluctant to enter into issues regarding whether the president is empowered to commit armed forces abroad to protect national interests when there is no evidence of an attack and in the absence of a declaration of war or specific congressional authorization short of a declaration of war. It is true also that lower courts are reluctant to adjudicate questions involving the constitutional authority of Congress versus that of the president on "political question" grounds. We will go into this matter more deeply in Chapter 3.

The following chapter considers the issue of aggregate powers of the executive. This notion that war power is an aggregate of the various powers granted by Article I, Section 8, of the Constitution got its roots from Alexander Hamilton and his writings in The Federalist.


NOTES
1.
Jacob Javits before the U.S. Senate. Committee on Foreign Relations, Documents Relating to the War Power of Congress, the President's Authority as Commander-in-Chief and the War in Indochina, 91st Cong., 2nd Sess. ( Washington, D.C.: U.S. Government Printing Office, 1970), p. III (hereafter in this chapter, this document will be referred to as Documents Relating to the War Power); Charles Lefgren, "War-Making under the Constitution: The Original Understanding,"

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