Source of Congress's War Powers

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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; . . .

Three different views regarding the source of “war powers” were expressed in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. In the Federalist Papers,1 Alexander Hamilton elaborated on the theory that the war power is an aggregate of the particular powers granted to a National Government. In 1795, the argument was advanced that the National Government’s war power is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.2 In McCulloch v. Maryland, Chief Justice John Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it.3 During the Civil War era, the two latter theories emerged from the Supreme Court. Speaking for four Justices in Ex parte Milligan, Chief Justice Salmon P. Chase described the power to declare war as “necessarily” extending “to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.” 4 In another case, adopting the terminology used by President Abraham Lincoln in his Message to Congress on July 4, 1861,5 the Court referred to “the war power” as a single unified power.6

In 1936, the Court explained the logical basis for imputing such an inherent power to the Federal Government. In United States v. Curtiss-Wright Corp.,7 Justice George Sutherland stated the reasons for this conclusion:

As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency—namely, the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. It results that the 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.8

1: The Federalist No. 23 (Alexander Hamilton). Hamilton argued that the power to regulate the Armed Forces, like other powers related to the common defense, “ought to exist without limitation.” Id.
2: Penhallow v. Doane, 3 U.S. (3 Dall.) 54, 80 (1795) ( “In [the Continental] Congress were vested, because by Congress were exercised with the approbation of the people, the rights and powers of war and peace. In every government, whether it consists of many states, or of a few, or whether it be of a federal or consolidated nature, there must be a supreme power or will; the rights of war and peace are component parts of this supremacy . . . ” ).
3: McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 373 (1819) ( “[T]he power to declare war involves, by necessary implication, if anything was to be implied, the powers of raising and supporting armies, and providing and maintaining a navy, to prosecute the war then declared.” ).
4: Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (dissenting opinion); see also Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871).
5: Cong. Globe, 37th Congress, 1st Sess., App. 1 (1861).
6: Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1875).
7: 299 U.S. 304 (1936).
8: Id. at 318; but see Torres v. Texas Dep’t of Public Safety, No. 20-603, slip op. at 7 (U.S. June 29, 2022) ( “For one thing, the Constitution’s text, across several Articles, strongly suggests a complete delegation of authority to the Federal Government to provide for the common defense. Unlike most of the powers given to the national government, the Constitution spells out the war powers not in a single, simple phrase, but in many broad, interrelated provisions.” ).