Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

Congress’s collective war powers provide it with broad authority to support the country’s war effort in a variety of ways. The Supreme Court has held that congressional war powers include the power to provide for compulsory military service,1

(abrogating state sovereign immunity and upholding servicemembers’ right to enforce employment discrimination law against a state agency); (upholding constitutionality of federal legislation exempting servicemembers from taxation by local and state government where the servicemember is stationed); (holding that Congress had constitutional power to promote health, safety, and efficiency of servicemembers by prohibiting brothels near military posts); (upholding constitutionality of wartime prohibition of trafficking “in order to guard and promote the efficiency of the men composing the army and the navy and of the workers engaged in supplying them arms” ). protect servicemembers during and after active duty,2 control domestic industry and means of production to support war needs,3 requisition property under certain conditions,4 close non-essential industries,5 impose rent and price controls,6 permit the government to renegotiate war contracts to recoup excessive profits,7 and enact other trade and economic restrictions.8 Although these powers are extensive, the Supreme Court has also observed that the Constitution applies in times of war and peace, and that there are constitutional limits on congressional war authority.9 For example, the Court has held that protections of individual rights in the Bill of Rights10 limit Congress’s power to use military commissions to try American civilians when federal courts are open and functioning11 and prohibit Congress from imposing cruel and unusual punishment on deserters from the military.11

Footnotes

1

See, e.g.,

Torres v. Tex. Dep’t of Pub. Safety,

597 U.S. 580 (2022)

(abrogating state sovereign immunity and upholding servicemembers’ right to enforce employment discrimination law against a state agency);

Dameron v. Brodhead,

345 U.S. 322, 324 (1953)

(upholding constitutionality of federal legislation exempting servicemembers from taxation by local and state government where the servicemember is stationed);

McKinley v. United States,

249 U.S. 397, 399 (1919)

(holding that Congress had constitutional power to promote health, safety, and efficiency of servicemembers by prohibiting brothels near military posts);

Hamilton v. Ky Distilleries & Warehouse Co.,

251 U.S. 146, 156 (1919)

(upholding constitutionality of wartime prohibition of trafficking “in order to guard and promote the efficiency of the men composing the army and the navy and of the workers engaged in supplying them arms” ).

2

United States v. Bethlehem Steel Corp.,

315 U.S. 289, 305 (1942)

;

Dakota Cent. Tel. Co. v. South Dakota,

250 U.S. 163, 183–88 (1919)

;

N. Pac. Ry. Co. v. North Dakota ex rel. Langer,

250 U.S. 135, 149–52 (1919)

.

3

Yakus v. United States,

321 U.S. 414, 443 (1944)

;

United States v. Russell,

80 U.S. 623, 627–28 (1871)

. War-time requisitions may be subject to a requirement that the government pay just compensation, see .

4

United States v. Central Eureka Mining Company,

357 U.S. 155, 168 (1958)

.

5

Bowles v. Willingham,

321 U.S. 503, 520–21 (1944)

;

Yakus,

321 U.S. at 441–43

.

6

Lichter v. United States,

334 U.S. 742, 778–88 (1948)

.

7

See, e.g.,

Hamilton v. Dillin,

88 U.S. (21 Wall.) 73, 86–87 (1874)

(imposing licensing fee on trade in cotton with Confederate states during the Civil War);

Legal Tender Cases,

79 U.S. (12 Wall.) 457, 540–41 (1870)

(upholding authorization of paper currency as a lawful exercise of congressional response to the economic crisis caused by the Civil War).

8

Hamilton v. Ky. Distilleries & Warehouse Co.,

251 U.S. 146, 156 (1919)

( “The war power of the United States, like its other powers and like the police power of the states, is subject to applicable constitutional limitations . . . .” );

Home Bldg. & Loan Ass’n v. Blaisdell,

290 U.S. 398, 426 (1934)

( “[E]ven the war power does not remove constitutional limitations safeguarding essential liberties.” );

Ex parte Milligan,

71 U.S. (4 Wall.) 2, 120–21 (1866)

( “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” ).

9

For background on the Bill of Rights, see .

10

Ex parte Milligan,

71 U.S. (4 Wall.) at 122

; See also .

12