Civil Liberties and Acts of War - 2004
War is "[t]hat state in which a nation prosecutes its right by force." The Prize Cases, 67 U.S. (2 Black) 635, 666 (1862).
1. Congressional & Presidential Shared War Powers & Limitations.
The United States Constitution grants shared war powers between the President and the Congress of the United States. "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; . . . ." U.S. Const. art. II, 2, cl. 1.
"The Constitution confers on the President the "executive Power," U.S. Const. art. II, 1, cl.1, and imposes on him the duty to 'take Care that the Laws be faithfully executed.' U.S. Const., art. II, 3. . . . The Constitution thus invests the President, as Commander in Chief, with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of war."
Ex Parte Quirin v. Cox, 317 U.S. 1, 26 (1942). However, the Constitution grants Congress alone the authority "[t]o declare War . . . ." U.S. Const., art. I, 8, cl. 11. Laurence Tribe documents two theories regarding this shared power:
"(1) congress has the exclusive power to commit the nation to war, although the President needs no congressional authorization to act militarily in genuine emergencies; or (2) the President has the exclusive power to deploy military force to protect national security; the only war-related powers that belong peculiarly to Congress are the power to declare a war, and the fiscal power to raise and support armies."
Laurence H. Tribe, American Constitutional Law 4-6, at 663 (3d ed. 2000). While admitting these two diverse theories exist, Tribe finds that "[i]t is impossible to avoid the conclusion that the Constitution mandates a major role for Congress in supervising executive military operations [since] . . . the President cannot make war if Congress does not supply the warriors." Tribe, supra, at 663-64. The Framer's granted to Congress the power of the purse-strings:
"All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. . . .The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts . . . To borrow Money on the credit of the United States; . . . To regulate Commerce with foreign Nations, and among the several States . . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; . . . [and] To provide and maintain a Navy . . . ."
U.S. Const., art. I, 7, cl. 1, 8, cl. 1, 2, 3, 12-13.
In addition to power over the Nation's expenditures, the Congress has power to carry out its explicit duties under the Necessary and Proper clause. U.S. Const., art. I, 8, cl. 18. See McCulloch v. Maryland, 17 U.S. 316, 421 (1819) ("Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, [and which are consistent] with the letter and spirit of the constitution, are constitutional.").
As a general rule, since the end of the Second World War, Congress usually gives concurrence to a particular use of United States armed forces by passing a resolution which sets specified conditions of use; it is a "discretionary matter for Congress to decide in which form . . . it will give its consent." Mitchell v. Laird, 488 F.2d 611, 615 (D.C. Cir. 1973). Tribe notes that, "[c]ontrary to the Constitution's text, structure, and history, the Executive has, since the advent of the Cold War, made decisions to war without much congressional participation and, even when Congress has participated, it has often done so without much exercise of independent judgment." Tribe, supra, at 667. In fact, there are 130 cases where Presidents have asserted military action abroad without congressional approval. 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure 6.9 (3d ed. 1999). On the other hand, there have only been six occasions in which Congress has actually made a formal declaration of war. Id.
Only in exceptional circumstances may the President initiate war without congressional approval. Mitchell, 488 F.2d at 613. Although the court in Mitchell asserted it was not exhausting all possibilities, it came to a unanimous opinion "that there are some types of war which, without Congressional approval, the President may begin to wage: for example, he may respond immediately without such approval to a belligerent attack, or in a grave emergency he may, without Congressional approval, take the initiative to wage war." Id. In these circumstances, "necessity confers the requisite authority upon the President." Id. at 613-14. "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority." The Prize Cases, 67 U.S. at 667. In the case that the President "assumes powers which [require] the authority or sanction of Congress," a subsequent ratification may "operate to perfectly cure the defect." Id. at 671. In such a case, a formal declaration of war is not the only acceptable form of approval. Mitchell, 488 F.2d at 615. Congress may give its subsequent approval or disapproval, but it is "a political question, or, to phrase it more accurately, a discretionary matter for Congress to decide in which form, if any, it will give its consent to the continuation of a war already begun by a President acting alone." Id.
See attached APPENDIX, taken from Rotunda, supra, at 6.10.
The War of 1812, declaration passed on June 18, 1812; Barbary Wars, declaration passed on March 3, 1815; Mexican War, declaration passed on May 13, 1846; Spanish-American War, declaration passed on April 25, 1898; World War I, declarations passed on April 6 (Germany) and December 11 (Austria-Hungary), 1917; World War II, declarations passed on December 8 (Japan) and December 11 (Germany and Italy), 1941. Rotunda, supra, at 6.9. Note that Congress did not make a formal declaration of war in either the Civil War, the Korean War (1950's), or the war with Iraq (Desert Storm). Id.
A. Presidential Authority Limitations - Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
One of the most noted frameworks for analyzing the constitutionality of presidential action in a time of crisis was outlined by Justice Jackson in Youngstown, 343 U.S. at 634 (Jackson, J., concurring). Presidential action may fall into one of three categories:
"1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."
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"2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility."
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"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."
Id. at 635-37. In Youngstown, the President, as Commander in Chief of the Armed Forces, ordered the seizure of a majority of the nation's steel mills to ensure that the war effort would not collapse. Id. at 582. The Court held the President's conduct unconstitutional, id. at 587, in light of contrary Congressional intent, where "Congress had refused to adopt that method of settling labor disputes." Id. at 586. "The President's power, if any, to issue [an] order must stem either from an act of Congress or from the Constitution itself." Id. at 585. The Court concluded that "[e]ven though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities." Id. at 587.
Although the power to remedy war-time needs is a legislative power, "neither expressly or impliedly included in any war power of the President," O'Neal v. United States, 140 F.2d 908, 911 (6th Cir. 1944), "the Congress in the field of its duties may invoke the action of the executive branch in so far as the action invoked is not an assumption of its own constitutional field of action." Id. at 912. "[I]n determining what one branch of the Government may do in seeking assistance from another branch, 'the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental ordination.'" Id. (quoting J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928)).
The Court gives further guidance for Justice Jackson's presidential-congressional authoritative analysis under Dames and Moore v. Regan, 453 U.S. 654 (1981). Major Kirk L. Davies, The Imposition of Martial Law in the United States, 49 A.F. L. Rev. 67, 94 (2000). The Court, in Dames & Moore,
" noted, Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, "especially . . . in the areas of foreign policy and national security," imply 'congressional disapproval' of action taken by the Executive."
"On the contrary, the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to "invite" "measures on independent presidential responsibility." At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President."
Id. at 95 (quoting Dames & Moore, 453 U.S. at 678) (citation omitted).
B. Legality of Martial Law.
Necessity is the key to whether martial law, or other less stringent measures, are constitutional. Blackstone commented on the reality of martial law:
" [M]artial law, which is built upon no settled principles, but is entirely arbitrary in its decision, is . . . in truth and reality no law, but something indulged rather than allowed as law. The necessity of order and discipline in an army is the only thing which can give it countenance, and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice to the laws of the land."
Rotunda, supra, at 6.13(b) (quoting 1 Blackstone, Commentaries, at 413).
Martial law cannot be instituted unless civilian courts are closed by necessity. "Martial law, when applicable, supercedes civilian by granting control of persons and property to military rule and court martial." Rotunda, supra, at 6.13(b). The severity of instituting martial law stems from lack of constitutional safeguards afforded defendants in Article I courts, as opposed to civilian Article III courts. Id. at 6.13(a). Courts martial do not require an independent judiciary, a jury of an accused's peers, a right to legal counsel in all offenses, nor a grand jury indictment. Id. (footnotes omitted).
Although a strong argument exists that the President may legally declare martial law, see Davies, supra, "martial law is clearly an extreme option." Davies, supra, at 95. Davies admits that there is "a paucity of case law directly concerning martial law." Id. However, regardless of whether presidential authority actually exists to declare martial law, "the Youngstown opinion[ ] shows that exercise of any emergency authority must be assessed in light of several factors, including, congressional action (or inaction), the Constitution, and the prevailing circumstances at the time." Id.
3. The majority opinion in Youngstown held that, in light of express congressional disapproval, the governmental taking possession of private property for war-time necessity is "a job for the Nation's lawmakers, not for its military authorities." Youngstown, 343 U.S. at 587.
The Supreme Court considered the constitutionality of an explicit congressional declaration authorizing martial law in Duncan v. Kahanamoku, 327 U.S. 304 (1946). Even where Congress explicitly authorized use of "martial law" in Hawaii under the Hawaiian Organic Act, the Court drastically limited its application. Id. at 324. Because Congress had not explicitly defined "martial law," and because, from time of this Nation's founding, "[Article III] courts and their procedural safeguards [have been] indispensable to our system of government," id. at 322, the Court found that Congress did not intend to institute civilian trials by military commission. Id. at 318-19. Under the Organic Act, the Court regarded "martial law" as only the authority to "act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion." Id. at 324.
The factual circumstances in Duncan did not warrant a application of pure martial law. The Court noted in its examination of the facts that the alleged offenses were not committed during a time of imminent danger; civilians had not been required to evacuate any Article III court buildings, let alone the entire area. Id. at 313. Examining Duncan under Justice Jackson's three-tier analysis in Youngstown, Davies takes the position that "without strict conditions of necessity even Congress and the President acting together may not violate the Bill of Rights." Davies, supra, at 103 (emphasis added).
"The Supreme Court has clearly and succinctly stated that 'martial law can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. . . Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration."
Rotunda, supra, at 6.13(b) (quoting Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)). "If the invasion has ended, there is no basis for martial law. Even if the right of habeas corpus is lawfully suspended, as it may be during time of war or insurrection, a prisoner thus denied habeas corpus is, nevertheless, entitled to a civilian trial with full Constitutional protections. Id. (citing Ex parte Milligan, 71 U.S. (4 Wall.) at 126). Notably, however, the same is not true regarding combatants in a war. Id. Combatant status (even of those claiming U.S. Citizenship) affords military jurisdiction. Id. (citing Ex parte Quirin, 317 U.S. 1 (1942) (saboteurs secretly entering the U.S. without uniforms during a time of war were subject to court martial)).
II. Civil Liberties of U.S. Citizens & Aliens.
While an application of pure martial law requires extreme necessity (and seemingly an express grant by Congress), lesser measures curtailing civil liberties in a time of national crisis have been upheld by the Supreme Court in the name of exigent circumstances. In fact, the courts have historically regarded executive and legislative war-time decisions as non-justiciable, political questions. For example, in Hirabayashi v. United States, 320 U.S. 81, 93 (1943), the Court recognized that war-making responsibility belongs to the Executive and Legislative branches of government, and "it is not for any court to sit in review of the wisdom of their action or to substitute its judgment for theirs." Id.
A. Racially Based War-Time Initiatives.
Although deference is to be given to military decisions in emergency, invidious discrimination must withstand strict scrutiny. The Supreme Court's earlier decisions that dealt with racially-based initiatives, see Hirabayashi v. United States, 320 U.S. 81 (1943), Korematsu v. United States, 323 U.S. 214 (1944), have "never occupied an honored place in our history." Hirabayashi v. United States, 828 F.2d 591, 592 (9th Cir. 1987). However, these cases stand as good law in so far as the constitutionality of military action under exigent circumstances. In these earlier cases, "[t]he claimed emergency preventing the separation of loyal from disloyal Japanese Americans was critical the Supreme Court's decisions upholding the internment of Hirabayashi and Korematsu." Id. at 603.
Congress enacted the Civil Liberties Act of 1988, 50 App. U.S.C. 1989 et seq., for the "Restitution for World War II Internment of Japanese-Americans and Aleuts." Id. Congress stated the purposes of this Act in 1989:
The purposes of this Act are to -
(1) acknowledge the fundamental injustice of the evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II;
(2) apologize on behalf of the people of the United States for the evacuation, relocation, and internment of such citizens and permanent resident aliens;
(3) provide for a public education fund to finance efforts to inform the public about the internment of such individuals so as to prevent the recurrence of any similar event;
(4) make restitution to those individuals of Japanese ancestry who were interned;
(5) [provisions regarding Aleut residents] . . .
(6) discourage the occurrence of similar injustices and violations of civil liberties in the future; and
(7) make more credible and sincere any declaration of concern by the United States over violations of human rights committed by other nations.
In Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court of the United States upheld a military proclamation that prohibited the presence of persons of Japanese ancestry in a geographic zone along the West Coast of the United States. The Court acknowledged that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect," id. at 216, but concluded that "[p]ressing public necessity may justify the existence of such restrictions," id., although such restrictions must be subject "to the most rigid scrutiny." Id. The Court noted that "[n]othing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety," id. at 218, can justify such restrictions. The Court recognized that "compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions," id. at 219-20, but concluded that "when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger." Id. at 220. The Court specifically rejected the allegation that the Government's actions were based on racial prejudice and cited the military threat to the Nation as the rationale. Id. at 223. In his concurring opinion, Justice Frankfurter wrote: "[T]he validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless." Id. at 224 (Frankfurter, J., concurring). Further,
" [t]he provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is "the power to wage war successfully."
Id. (quoting Hirabayashi, 320 U.S. at 93).
The 1944 Korematsu decision ("Korematsu I") was criticized in Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) ("Korematsu II"), where Mr. Korematsu was seeking a Writ of Coram Nobis to correct factual findings in Korematsu I. The district court concluded that the Government had improperly withheld evidence helpful to Mr. Korematsu in Korematsu I. The court also noted that the Commission of Wartime Relocation and Internment of Civilians ("Commission"), created by Congress in 1980, had concluded unanimously that "military necessity did not warrant the exclusion and detention of ethnic Japanese." Id. at 1416. The court quoted the Commission's finding that the "'broad historical causes which shaped these decisions [exclusion and detention] were race prejudice, war hysteria and a failure of political leadership.'" Id. at 1416-17 (quoting Commission report). The district court acknowledged that Korematsu I "stands as the law of this case [Korematsu II]," id. at 1420, but otherwise questioned its precedential value. Id. (noting that the Supreme Court and legal scholars have called the 1944 decision "an anachronism" for "upholding overt racial discrimination as 'compellingly justified'").
B. Rent Controls & Other Measures.
Congress has an extensive ability to regulate civilian life during a time of war as long as necessity requires. Tribe describes a "national" power granted to Congress, which goes beyond the scope of the Constitution, in which judicial review is limited. Tribe, supra, at 5-18. Tribe believes the Court adopted a national sovereignty position in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936):
"[T]he investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality."
Tribe, supra, 5-18 n.1 (quoting Curtiss-Wright, 299 U.S. 304, 318). In fact, "[t]he Supreme Court has held that [congressional] war powers, in conjunction with the Necessary and Proper Clause, grant Congress authority to take numerous actions in wartime which would be unconstitutional in peacetime. Such congressional action may both assume responsibilities ordinarily left to the states and restrict the scope of private rights." Id. at 5-18.
The courts have upheld expansive congressional war-power legislation on several occasions. Rent control measures are a prime example, even those enacted after a cease-fire. For example, in Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948), the Court upheld a challenge to the enforcement of the Housing and Rent Act of 1947. Under this Act, Congress enacted a maximum rent for particular defense-rental areas, id. at 138, subsequent to a presidential proclamation which terminated hostilities. Id. at 140. The Cloyd W. Miller Co. ("Company") challenged the constitutionality of the Act when the Expediter (Woods) cited the Company for demanding 40% and 60% rental increases. Id. at 139. Although the lower court concluded that Congress' authority to regulate rents terminated when hostilities terminated, the Supreme Court reversed, noting that a housing deficit still existed due to the heavy demobilization. Id. at 142. The Court concluded that the "war power does not necessarily end with the cessation of hostilities." Id. at 141. The Court relied on a previous war-time decision, Hamilton v. Kentucky Distilleries & Warehouse Co., holding "that the war power includes the power 'to remedy the evils which have arisen from its rise and progress' and continues for the duration of that emergency." Id. (quoting Hamilton v. Kentucky Distilleries, 251 U.S. 146, 161 (1919)).
In Hamilton, the Court upheld the War-Time Prohibition Act ('the Act") which made the sale of "distilled spirits" for "beverage purposes" illegal. Hamiltion, 251 U.S. at 153. Kentucky Distilleries challenged several aspects of the Act, one argument being that the Act became void or inoperative because the war emergency had passed. Id. at 154. Despite some evidence of ceased hostilities, the Court noted the railways were still under national control and the nation's man power had not been restored to a complete peace. Id. 163. The Court sustained the prohibition measures "because they conserved manpower and increased efficiency of production in critical days during the period of demobilization, and helped to husband the supply of grains and cereals depleted by the war effort." Woods, 333 U.S. at 142. Without the Necessary and Proper Clause's application to deal with demobilization efforts in the aftermath of war, "[t]he result would be paralyzing. It would render Congress powerless to remedy conditions the creation of which necessarily followed from the mobilization of men and materials for successful prosecution of war." Id. at 143.
The war power also grants the federal government extensive power under the Fifth Amendment. In Hamilton, Kentucky Distilleries raised a Fifth Amendment challenge, alleging a governmental taking without just compensation. Id. at 154. The Court dismissed this argument, essentially, because there was "no appropriation of the liquor for public purposes." Id. at 157. The Act gave a seven-month window for liquor owners to dispose of their liquor without restriction. Id. The Court, in Hamilton, further explained that "the Fifth Amendment imposes in this respect no greater limitation upon the national power than does the Fourteenth Amendment upon state power." Id. at 156. The federal government may impose restrictions, without compensation, under the war power and the Necessary and Proper Clause if the restrictions are those that a State could impose under the Fourteenth Amendment. Id. (emphasis added). Although the federal government does not have a police power, the liquor prohibition did in fact increase war efficiency, and thus was a valid exercise of Congress' war power - not a taking without just compensation. Id.
Although legislative war-time initiatives are afforded great deference, judicial caution is necessary. The Court, in Woods, "recognize[d] the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and the Tenth Amendments as well. . . . And the question whether the war power has been properly employed in [such cases] is open to judicial inquiry." Id. at 143-44. The applicable standard regards whether a congressional measure is enacted to "cope with a current condition of which the war was a direct and immediate cause. Its judgment on that score is entitled to the respect granted like legislation enacted pursuant to the police power." Id. at 144 (footnote omitted).
The Court has approved other, somewhat drastic, congressional measures in the name of the war power. In 1948, the Court upheld the Renegotiation Act, wherein Congress authorized the recapture of excess profits made by private parties who had produced war goods. Lichter v. United States, 334 U.S. 742 (1948). Congress chose the Renegotiation Act, as opposed to mobilization of the nation's resources under a "totalitarian model," id. at 766, to deal with war-time crises. "In light of the compelling necessity for the immediate production of vast quantities of war goods," id., and because profiteering opportunities have been "often scandalously seized" in all U.S. wars, the Court has continuously upheld congressional contract cancellation, price fixation, excess profit recapture, and other economical measures designed to cope with the necessities of war. Id. at 769. The Court has taken a somewhat hands-off approach in such situations: "[I]f the Executive is in need of additional laws by which to protect the nation against war profiteering, the Constitution has given to Congress, not to this Court, the power to make them." Id.
III. Conclusion.
A thorough analysis must include a weighing between the necessity of each executive initiative, or legislative enactment, against all factual circumstances. In addition, each branch of government must take care to stay within its constitutional boundaries. While the President, as Commander in Chief, has broad military authority to wage war with enemies, Congress retains the power to determine necessary war-time legislation which affects U.S. civilians. These are the constitutional restraints under the Separation of Powers doctrine. Moreover, while the courts will give generous deference to Executive and Legislative branch decisions, pure martial law is highly suspect. "Any power, of course, can be abused." Woods, 333 U.S. at 144. As such, this Nation takes extreme care to protect Article III courts and all the procedural safeguards they afford under the Bill of Rights.