Annotation 41 - Article I

Clauses 11, 12, 13, and 14. War; Military Establishment


Source and Scope

Three Theories.--Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,1397 Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by Article I, Sec. 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.1398 Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland,1399 he listed the power ''to declare and conduct a war''1400 as one of the ''enumerated powers'' from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War, the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex parte Milligan, Chief Justice 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.''1401 In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,1402 the Court referred to ''the war power'' as a single unified power.1403

An Inherent Power.--Thereafter, we find the phrase, ''the war power,'' being used by both Chief Justice White1404 and Chief Justice Hughes,1405 the former declaring the power to be ''complete and undivided.''1406 Not until 1936, however, did the Court explain the logical basis for imputing such an inherent power to the Federal Government. In United States v. Curtis-Wright Corp.,1407 the reasons for this conclusion were stated by Justice Sutherland as follows: ''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 Con tinental 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 power 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.''1408

A Complexus of Granted Powers.--In Lichter v. United States,1409 on the other hand, the Court speaks of the ''war powers'' of Congress. Upholding the Renegotiation Act, it declared that: ''In view of this power 'To raise and support Armies, . . . and the power granted in the same Article of the Constitution 'to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,' . . . the only question remaining is whether the Renegotiation Act was a law 'necessary and proper for carrying into Execution' the war powers of Congress and especially its power to support armies.''1410 In a footnote, it listed the Preamble, the necessary and proper clause, the provisions authorizing Congress to lay taxes and provide for the common defense, to declare war, and to provide and maintain a navy, together with the clause designating the President as Commander-in-Chief of the Army and Navy, as being ''among the many other provisions implementing the Congress and the President with powers to meet the varied demands of war. . . .''1411

Declaration of War

In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered ''to make war.''1412 Although there were solitary suggestions that the power should better be vested in the President alone,1413 in the Senate alone,1414 or in the President and the Senate,1415 the sentiment of the Convention, as best we can determine from the limited notes of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by the concurrence of the President and both Houses of Congress.1416 In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual;1417 in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of executive efficiency nor to entrust the matter solely to a branch so close to popular passions.1418

The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to ''declare war.''1419 Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to insure that the President was empowered to repel sudden attacks1420 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.1421

An early controversy revolved about the issue of the President's powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war.1422 Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed.1423 Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli ''and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . .''1424 But no formal declaration of war was passed, Congress apparently accepting Hamilton's view.1425

Sixty years later, the Supreme Court sustained the blockade of the Southern ports instituted by Lincoln in April 1861 at a time when Congress was not in session.1426 Congress had subsequently ratified Lincoln's action,1427 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.''1428 The minority challenged this doctrine on the ground that while the President could unquestionably adopt such measures as the laws permitted for the enforcement of order against insurgency, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences ensuing from a state of war.1429

The view of the majority was proclaimed by a unanimous Court a few years later when it became necessary to ascertain the exact dates on which the war began and ended. The Court, the Chief Justice said, must ''refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second.''1430

These cases settled the issue whether a state of war could exist without formal declaration by Congress. When hostile action is taken against the Nation, or against its citizens or commerce, the appropriate response by order of the President may be resort to force. But the issue so much a source of controversy in the era of the Cold War and so divisive politically in the context of United States involvement in the Vietnamese War has been whether the President is empowered to commit troops abroad to further national interests in the absence of a declaration of war or specific congressional authorization short of such a declaration.1431 The Supreme Court studiously refused to consider the issue in any of the forms in which it was presented,1432 and the lower courts gen erally refused, on ''political question'' grounds, to adjudicate the matter.1433 In the absence of judicial elucidation, the Congress and the President have been required to accommodate themselves in the controversy to accept from each other less than each has been willing to accept but more than either has been willing to grant.1434


Purpose of Specific Grants

The clauses of the Constitution, which give Congress authority to raise and support armies, and so forth, were not inserted to endow the national government rather than the States with the power to do these things but to designate the department of the Federal Government, which would exercise the powers. As we have noted above, the English king was endowed with the power not only to initiate war but the power to raise and maintain armies and navies.1435 Aware historically that these powers had been utilized to the detriment of the liberties and well-being of Englishmen and aware that in the English Declaration of Rights of 1688 it was insisted that standing armies could not be maintained without the consent of Parliament, the Framers vested these basic powers in Congress.1436

Time Limit on Appropriations for the Army

Prompted by the fear of standing armies to which Story alluded, the framers inserted the limitation that ''no appropriation of money to that use shall be for a longer term than two years.'' In 1904, the question arose whether this provision would be violated if the Government contracted to pay a royalty for use of a patent in constructing guns and other equipment where the payments are likely to continue for more than two years. Solicitor-General Hoyt ruled that such a contract would be lawful; that the appropriations limited by the Constitution ''are those only which are to raise and support armies in the strict sense of the word 'support,' and that the inhibition of that clause does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for the common defense. . . .''1437 Relying on this earlier opinion, Attorney General Clark ruled in 1948 that there was ''no legal objection to a request to the Congress to appropriate funds to the Air Force for the procurement of aircraft and aeronautical equipment to remain available until expended.''1438


The constitutions adopted during the Revolutionary War by at least nine of the States sanctioned compulsory military service.1439 Towards the end of the War of 1812, conscription of men for the army was proposed by James Monroe, then Secretary of War, but opposition developed and peace came before the bill could be enacted.1440 In 1863, a compulsory draft law was adopted and put into operation without being challenged in the federal courts.1441 Not so the Selective Service Act of 1917.1442 This measure was attacked on the grounds that it tended to deprive the States of the right to ''a well-regulated militia,'' that the only power of Congress to exact compulsory service was the power to provide for calling forth the militia for the three purposes specified in the Constitu tion, which did not comprehend service abroad, and finally that the compulsory draft imposed involuntary servitude in violation of the Thirteenth Amendment. The Supreme Court rejected all of these contentions. It held that the powers of the States with respect to the militia were exercised in subordination to the paramount power of the National Government to raise and support armies, and that the power of Congress to mobilize an army was distinct from its authority to provide for calling the militia and was not qualified or in any wise limited thereby.1443

Before the United States entered the first World War, the Court had anticipated the objection that compulsory military service would violate the Thirteenth Amendment and had answered it in the following words: ''It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.''1444 Accordingly, in the Selective Draft Law Cases,1445 it dismissed the objection under that amendment as a contention that was ''refuted by its mere statement.''1446

Although the Supreme Court has so far formally declined to pass on the question of the ''peacetime'' draft,1447 its opinions leave no doubt of the constitutional validity of the act. In United States v. O'Brien,1448 upholding a statute prohibiting the destruction of selective service registrants' certificate of registration, the Court, speaking through Chief Justice Warren, thought ''[t]he power of Congress to classify and conscript manpower for military service is 'beyond question.'''1449 In noting Congress' ''broad constitutional power'' to raise and regulate armies and navies,1450 the Court has specifically observed that the conscription act was passed ''pursuant to'' the grant of authority to Congress in clauses 12-14.1451

Care of the Armed Forces

Scope of the congressional and executive authority to prescribe the rules for the governance of the military is broad and subject to great deference by the judiciary. The Court recognizes ''that the military is, by necessity, a specialized society separate from civilian society,'' that ''[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian,'' and that ''Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [military society] shall be governed than it is when prescribing rules for [civilian society].''1452 Denying that Congress or military authorities are free to disregard the Constitution when acting in this area,1453 the Court nonetheless operates with ''a healthy deference to legislative and executive judgments'' with respect to military affairs,1454 so that, while constitutional guarantees apply, ''the different character of the military community and of the military mission requires a different application of those protections.''1455

In reliance upon this deference to congressional judgment with respect to the roles of the sexes in combat and the necessities of military mobilization, coupled with express congressional consideration of the precise questions, the Court sustained as constitutional the legislative judgment to provide only for registration of males for possible future conscription.1456 Emphasizing the unique, separate status of the military, the necessity to indoctrinate men in obedience and discipline, the tradition of military neutrality in political affairs, and the need to protect troop morale, the Court upheld the validity of military post regulations, backed by congressional enactments, banning speeches and demonstrations of a partisan political nature and the distribution of literature without prior approval of post headquarters, with the commander authorized to keep out only those materials that would clearly endanger the loyalty, discipline, or morale of troops on the base.1457 On the same basis, the Court rejected challenges on constitutional and statutory grounds to military regulations requiring servicemen to obtain approval from their commanders before circulating petitions on base, in the context of circulations of petitions for presentation to Congress.1458 And the statements of a military officer urging disobedience to certain orders could be punished under provisions that would have been of questionable validity in a civilian context.1459 Reciting the considerations previously detailed, the Court has refused to allow enlisted men and officers to sue to challenge or set aside military decisions and actions.1460

Congress has a plenary and exclusive power to determine the age at which a soldier or seaman shall be received, the compensation he shall be allowed and the service to which he shall be assigned. This power may be exerted to supersede parents' control of minor sons who are needed for military service. Where the statute requiring the consent of parents for enlistment of a minor son did not permit such consent to be qualified, their attempt to impose a condition that the son carry war risk insurance for the benefit of his mother was not binding on the Government.1461 Since the possession of government insurance payable to the person of his choice is calculated to enhance the morale of the serviceman, Congress may permit him to designate any beneficiary he desires, irrespective of state law, and may exempt the proceeds from the claims of creditors.1462 Likewise, Congress may bar a State from taxing the tangible, personal property of a soldier, assigned for duty therein, but domiciled elsewhere.1463 To safeguard the health and welfare of the armed forces, Congress may authorize the suppression of bordellos in the vicinity of the places where forces are stationed.1464

Trial and Punishment of Offenses: Servicemen, Civilian Employees, and Dependents

Under its power to make rules for the government and regulation of the armed forces, Congress has set up a system of criminal law binding on all servicemen, with its own substantive laws, its own courts and procedures, and its own appeals procedure.1465 The drafters of these congressional enactments conceived of a military justice system with application to all servicemen wherever they are, to reservists while on inactive duty training, and to certain civilians in special relationships to the military. In recent years, all these conceptions have been restricted.

Servicemen.--Although there is extensive disagreement about the practice of court-martial trial of servicemen for nonmilitary offenses in the past,1466 the matter never really was raised in substantial degree until the Cold War period when the United States found it essential to maintain both at home and abroad a large standing army in which great numbers of servicemen were draftees. In O'Callahan v. Parker,1467 the Court held that court-martial jurisdiction was lacking to try servicemen charged with a crime that was not ''service connected.'' The Court attempted to assay no definition of ''service connection,'' but among the factors it noted were that the crime in question was committed against a civilian in peacetime in the United States off-base while the serviceman was lawfully off duty.1468 O'Callahan was overruled in Solorio v. United States,1469 the Court holding that ''the requirements of the Constitution are not violated where . . . a court-martial is convened to try a serviceman who was a member of the armed services at the time of the offense charged.''1470 Chief Justice Rehnquist's opinion for the Court insisted that O'Callahan had been based on erroneous readings of English and American history, and that ''the service connection approach . . . has proved confusing and difficult for military courts to apply.''1471

With regard to trials before court-martials, it is not clear what provisions of the Bill of Rights and other constitutional guarantees do apply. The Fifth Amendment expressly excepts ''[c]ases arising in the land and naval forces'' from its grand jury provision, and there is an implication that these cases are also excepted from the Sixth Amendment.1472 The double jeopardy provision of the Fifth Amendment appears to be applicable.1473 The Court of Military Appeals now holds that servicemen are entitled to all constitutional rights except those expressly or by implication inapplicable to the military.1474 The Uniform Code of Military Justice, supplemented by the Manual for Courts-Martial, affirmatively grants due process rights roughly comparable to civilian procedures, so that many such issues are unlikely to arise absolutely necessitating constitutional analysis.1475 However, the Code leaves intact much of the criticized traditional structure of courts-martial, including the pervasive possibilities of command influence,1476 and the Court of Military Appeals is limited on the scope of its review,1477 thus creating areas in which constitutional challenges are likely.

Upholding Articles 133 and 134 of the Uniform Code of Military Justice, the Court stressed the special status of military soci ety.1478 This difference has resulted in a military Code regulating aspects of the conduct of members of the military that in the civilian sphere would go unregulated, but on the other hand the penalties imposed range from the severe to well below the threshold of that possible in civilian life. Because of these factors, the Court, while agreeing that constitutional limitations applied to military justice, was of the view that the standards of constitutional guarantees were significantly different in the military than in civilian life. Thus, the vagueness challenge to the Articles was held to be governed by the standard applied to criminal statutes regulating economic affairs, the most lenient of vagueness standards.1479 Neither did application of the Articles to conduct essentially composed of speech necessitate a voiding of the conviction, inasmuch as the speech was unprotected, and, even while it might reach protected speech, the officer here was unable to raise that issue.1480

Military courts are not Article III courts but agencies established pursuant to Article I.1481 It was established in the last century that the civil courts have no power to interfere with courts- martial and that court-martial decisions are not subject to civil court review.1482 Until August 1, 1984, the Supreme Court had no jurisdiction to review by writ of certiorari the proceedings of a military commission, but Congress has now conferred appellate jurisdiction of decisions of the Court of Military Appeals.1483 Prior to this time, civil court review of court-martial decisions was possible through habeas corpus jurisdiction,1484 an avenue that continues to exist, but the Court severely limited the scope of such review, restricting it to the issue whether the court-martial has jurisdiction over the person tried and the offense charged.1485 In Burns v. Wil son,1486 however, at least seven Justices appeared to reject the traditional view and adopt the position that civil courts on habeas corpus could review claims of denials of due process rights to which the military had not given full and fair consideration. Since Burns, the Court has thrown little light on the range of issues cognizable by a federal court in such litigation1487 and the lower federal courts have divided several possible ways.1488

Civilians and Dependents.--In recent years, the Court rejected the view of the drafters of the Code of Military Justice with regard to the persons Congress may constitutionally reach under its clause 14 powers. Thus, it held that an honorably discharged former soldier, charged with having committed murder during military service in Korea, could not be tried by court-martial but must be charged in federal court, if at all.1489 After first leaning the other way,1490 the Court on rehearing found lacking court-martial jurisdiction, at least in peacetime, to try civilian dependents of service personnel for capital crimes committed outside the United States.1491 Subsequently, the Court extended its ruling to civilian dependents overseas charged with noncapital crimes1492 and to civilian employees of the military charged with either capital or noncapital crimes.1493


War Powers in Peacetime

To some indeterminate extent, the power to wage war embraces the power to prepare for it and the power to deal with the problems of adjustment following its cessation. Justice Story em phasized that ''[i]t is important also to consider, that the surest means of avoiding war is to be prepared for it in peace. . . . How could a readiness for war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? . . . It will be in vain to oppose constitutional barriers to the impulse of self-preservation.''1494 Authoritative judicial recognition of the power is found in Ashwander v. Tennessee Valley Authority,1495 in which the power of the Federal Government to construct and operate a dam and power plant, pursuant to the National Defense Act of June 3, 1916,1496 was sustained. The Court noted that the assurance of an abundant supply of electrical energy and of nitrates, which would be produced at the site, ''constitute national defense assets'' and the project was justifiable under the war powers.1497

Perhaps the most significant example of legislation adopted pursuant to the war powers when no actual ''shooting war'' was in progress, with the object of strengthening national defense, was the Atomic Energy Act of 1946, establishing a body to oversee and further the research into and development of atomic energy for both military and civil purposes.1498 Congress has also authorized a vast amount of highway construction, pursuant to its conception of their ''primary importance to the national defense,''1499 and the first extensive program of federal financial assistance in the field of education was the National Defense Education Act.1500 The post-World War II years, though nominally peacetime, constituted the era of the Cold War and the occasions for several armed conflicts, notably in Korea and Indochina, in which the Congress enacted much legislation designed to strengthen national security, including an apparently permanent draft,1501 authorization of extensive space exploration,1502 authorization for wage and price con trols,1503 and continued extension of the Renegotiation Act to recapture excess profits on defense contracts.1504 Additionally, the period saw extensive regulation of matter affecting individual rights, such as loyalty-security programs,1505 passport controls,1506 and limitations on members of the Communist Party and associated organizations,1507 all of which are dealt with in other sections.

A particular province of such legislation is that designed to effect a transition from war to peace. The war power ''is not limited to victories in the field. . . . It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress.''1508 This principle was given a much broader application after the First World War in Hamilton v. Kentucky Distilleries Co.,1509 where the War Time Prohibition Act1510 adopted after the signing of the Armistice was upheld as an appropriate measure for increasing war efficiency. The Court was unable to conclude that the war emergency had passed with the cessation of hostilities.1511 But in 1924, it held that a rent control law for the District of Columbia, which had been previously upheld,1512 had ceased to operate because the emergency which justified it had come to an end.1513

A similar issue was presented after World War II in which the Court held that the authority of Congress to regulate rents by virtue of the war power did not end with the presidential proclamation terminating hostilities on December 31, 1946.1514 However, the Court cautioned that ''[w]e recognize 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 Tenth Amendments as well. There are no such implications in today's decision.''1515

In the same year, the Court sustained by only a five-to-four vote the Government's contention that the power which Congress had conferred upon the President to deport enemy aliens in times of a declared war was not exhausted when the shooting stopped.1516 ''It is not for us to question,'' said Justice Frankfurter for the Court, ''a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilites [sic] do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come.''1517

Delegation of Legislative Power in Wartime

The Court has insisted that in times of war as in times of peace ''the respective branches of the Government keep within the power assigned to each,''1518 thus raising the issue of permissible delegation, inasmuch as during a war Congress has been prone to delegate many more powers to the President than at other times.1519 But the number of cases actually discussing the matter is few.1520 Two theories have been advanced at times when the delegation doctrine carried more of a force than it has in recent years. First, it is suggested that inasmuch as the war power is inherent in the Federal Government, and one shared by the legislative and executive branches, Congress does not really delegate legislative power when it authorizes the President to exercise the war power in a prescribed manner, a view which entirely overlooks the fact that the Constitution expressly vests the war power as a legislative power in Congress. Second, it is suggested that Congress' power to delegate in wartime is limited as in other situations but that the existence of a state of war is a factor weighing in favor of the validity of the delegation.

The first theory was fully stated by Justice Bradley in Hamilton v. Dillin,1521 upholding a levy imposed by the Secretary of the Treasury pursuant to an act of Congress. To the argument that the levy was a tax the fixing of which Congress could not delegate, Justice Bradley noted that the power exercised ''does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the Government. . . .''1522

Both theories found expression in different passages of Chief Justice Stone's opinion in Hirabayashi v. United States,1523 upholding executive imposition of a curfew on Japanese-Americans pursuant to legislative delegation. On the one hand, he spoke to Congress and the Executive, ''acting in cooperation,'' to impose the curfew,1524 while on the other hand, he noted that a delegation in which Congress has determined the policy and the rule of conduct, leaving to the Executive the carry-out of the matter, is permissible delegation.1525

A similar ambiguity is found in Lichter v. United States,1526 upholding the Renegotiation Act, but taken as a whole the Court there espoused the second theory. ''The power [of delegation] is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to method to be employed may be essential to an effective use of its war powers by Congress. The degree to which Congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition. . . . Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind.''1527 The Court then examined the exigencies of war and concluded that the delegation was valid.1528


Constitution and the Advance of the Flag

Theater of Military Operations.--Military law to the exclusion of constitutional limitations otherwise applicable is the rule in the areas in which military operations are taking place. This view was assumed by all members of the Court in Ex parte Milligan,1529 in which the trial by a military commission of a civilian charged with disloyalty in a part of the country remote from the theater of military operations was held invalid. Although unanimous in the result, the Court divided five-to-four on the ground of decision. The point of disagreement was over which department of the Government had authority to say with finality what regions lie within the theater of military operations. The majority claimed this function for the courts and asserted that an area in which the civil courts were open and functioning does not;1530 the minority argued that the question was for Congress' determination.1531 The entire Court rejected the Government's contention that the President's determination was conclusive in the absence of restraining legislation.1532

Similarly, in Duncan v. Kahanamoku,1533 the Court declared that the authority granted by Congress to the territorial governor of Hawaii to declare marital law under certain circumstances, which he exercised in the aftermath of the attack on Pearl Harbor, did not warrant the supplanting of civil courts with military tribunals and the trial of civilians for civilian crimes in these military tribunals at a time when no obstacle stood in the way of the operation of the civil courts, except, of course, the governor's order.

Enemy Country.--It has seemed reasonably clear that the Constitution does not follow the advancing troops into conquered territory. Persons in such territory have been held entirely beyond the reach of constitutional limitations and subject to the laws of war as interpreted and applied by the Congress and the President.1534 ''What is the law which governs an army invading an enemy's country?'' the Court asked in Dow v. Johnson.1535 ''It is not the civil law of the invaded country; it is not the civil law of the conquering country; it is military law--the law of war--and its su premacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty.''

These conclusions follow not only from the usual necessities of war but as well from the Court's doctrine that the Constitution is not automatically applicable in all territories acquired by the United States, the question turning upon whether Congress has made the area ''incorporated'' or ''unincorporated'' territory,1536 but in Reid v. Covert,1537 Justice Black in a plurality opinion of the Court asserted that wherever the United States acts it must do so only ''in accordance with all the limitation imposed by the Constitution. . . . [C]onstitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home.''1538 The case, however, involved the trial of a United States citizen abroad and the language quoted was not subscribed to by a majority of the Court; thus, it must be regarded as a questionable rejection of the previous line of cases.1539

Enemy Property.--In Brown v. United States,1540 Chief Justice Marshall dealt definitively with the legal position of enemy property during wartime. He held that the mere declaration of war by Congress does not effect a confiscation of enemy property situated within the territorial jurisdiction of the United States, but the right of Congress by further action to subject such property to confiscation was asserted in the most positive terms. As an exercise of the war power, such confiscation was held not subject to the restrictions of the Fifth and Sixth Amendment. Since such confiscation is unrelated to the personal guilt of the owner, it is immaterial whether the property belongs to an alien, a neutral, or even to a citizen. The whole doctrine of confiscation is built upon the foundation that it is an instrument of coercion, which, by depriving an enemy of property within the reach of his power, whether within his territory or outside it, impairs his ability to resist the confiscating government while at the same time it furnishes to that government means for carrying on the war.1541

Prizes of War.--The power of Congress with respect to prizes is plenary; no one can have any interest in prizes captured except by permission of Congress.1542 Nevertheless, since international law is a part of our law, the Court will administer it so long as it has not been modified by treaty or by legislative or executive action. Thus, during the Civil War, the Court found that the Confiscation Act of 1861, and the Supplementary Act of 1863, which, in authorizing the condemnation of vessels, made provision for the protection of interests of loyal citizens, merely created a municipal forfeiture and did not override or displace the law of prize. It decided, therefore, that when a vessel was liable to condemnation under either law, the Government was at liberty to proceed under the most stringent rules of international law, with the result that the citizen would be deprived of the benefit of the protective provisions of the statute.1543 Similarly, when Cuban ports were blockaded during the Spanish-American War, the Court held, over the vigorous dissent of three of its members, that the rule of international law exempting unarmed fishing vessels from capture was applicable in the absence of any treaty provision, or other public act of the Government in relation to the subject.1544

The Constitution at Home in Wartime

Personal Liberty.--''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. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.''1545

Ex parte Milligan, from which these words are quoted, is justly deemed one of the great cases undergirding civil liberty in this country in times of war or other great crisis, holding that except in areas in which armed hostilities have made enforcement of civil law impossible constitutional rights may not be suspended and civilians subjected to the vagaries of military justice. Yet, the words were uttered after the cessation of hostilities, and the Justices themselves recognized that with the end of the shooting there arose the greater likelihood that constitutional rights could be and would be observed and that the Court would require the observance.1546 This pattern recurs with each critical period.

That the power of Congress to punish seditious utterances in wartime is limited by the First Amendment was assumed by the Court in a series of cases,1547 in which it nonetheless affirmed conviction for violations of the Espionage Act of 1917.1548 The Court also upheld a state law making it an offense for persons to advocate that citizens of the State should refuse to assist in prosecuting war against enemies of the United States.1549 Justice Holmes matter-of-factly stated the essence of the pattern that we have mentioned. ''When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.''1550 By far, the most dramatic restraint of personal liberty imposed during World War II was the detention and relocation of the Japanese residents of the Western States, including those who were native-born citizens of the United States. When various phases of this program were challenged, the Court held that in order to prevent espionage and sabotage, the authorities could restrict the movement of these persons by a curfew order,1551 even by a regulation excluding them from defined areas,1552 but that a citizen of Japanese ances try whose loyalty was conceded could not be detained in a relocation camp.1553

A mixed pattern emerges from an examination of the Cold War period. Legislation designed to regulate and punish the organizational activities of the Communist Party and its adherents was at first upheld1554 and then in a series of cases was practically vitiated.1555 Against a contention that Congress' war powers had been utilized to achieve the result, the Court struck down for the second time in history a congressional statute as an infringement of the First Amendment.1556 It voided a law making it illegal for any member of a ''communist-action organization'' to work in a defense facility.1557 The majority reasoned that the law overbroadly required a person to choose between his First Amendment-protected right of association and his right to hold a job, without attempting to distinguish between those persons who constituted a threat and those who did not.1558

On the other hand, in New York Times Co. v. United States,1559 a majority of the Court agreed that in appropriate circumstances the First Amendment would not preclude a prior restraint of publication of information that might result in a sufficient degree of harm to the national interest, although a different majority concurred in denying the Government's request for an injunction in that case.1560

Enemy Aliens.--The Alien Enemy Act of 1798 authorized the President to deport any alien or to license him to reside within the United States at any place to be designated by the President.1561 Though critical of the measure, many persons conceded its con stitutionality on the theory that Congress' power to declare war carried with it the power to treat the citizens of a foreign power against which war has been declared as enemies entitled to summary justice.1562 A similar statute was enacted during World War I1563 and was held valid in Ludecke v. Watkins.1564

During World War II, the Court unanimously upheld the power of the President to order to trial before a military tribunal German saboteurs captured within this Country.1565 Enemy combatants, said Chief Justice Stone, who without uniforms come secretly through the lines during time of war, for the purpose of committing hostile acts, are not entitled to the status of prisoners of war but are unlawful combatants punishable by military tribunals.

Eminent Domain.--An often-cited dictum uttered shortly after the Mexican War asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of the enemy, or for that taken for public use.1566 In United States v. Russell,1567 decided following the Civil War, a similar conclusion was based squarely on the Fifth Amendment, although the case did not necessarily involve the point. Finally, in United States v. Pacific Railroad,1568 also a Civil War case, the Court held that the United States was not responsible for the injury or destruction of private property by military operations, but added that it did not have in mind claims for property of loyal citizens taken for the use of the national forces. ''In such cases,'' the Court said, ''it has been the practice of the government to make compensation for the property taken. . . . although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clauses.''1569

Meantime, however, in 1874, a committee of the House of Representatives, in an elaborate report on war claims growing out of the Civil War, had voiced the opinion that the Fifth Amendment embodies the distinction between a taking of property in the course of military operations or other urgent military necessity, and other takings for war purposes, and required compensation of owners in the latter class of cases.1570 In determining what constitutes just compensation for property requisitioned for war purposes during World War II, the Court has assumed that the Fifth Amendment is applicable to such takings.1571 But as to property seized and destroyed to prevent its use by the enemy, it has relied on the principle enunciated in United States v. Pacific Railroad as justification for the conclusion that owners thereof are not entitled to compensation.1572

Rent and Price Controls.--Even at a time when the Court was utilizing substantive due process to void economic regulations, it generally sustained such regulations in wartime. Thus, shortly following the end of World War I, it sustained, by a narrow margin, a rent control law for the District of Columbia, which not only limited permissible rent increases but also permitted existing tenants to continue in occupancy provided they paid rent and observed other stipulated conditions.1573 Justice Holmes for the majority conceded in effect that in the absence of a war emergency the legislation might transcend constitutional limitations1574 but noted that ''a public exigency will justify the legislature in restricting property rights in land to a certain extent without compensation.''1575

During World War II and thereafter, economic controls were uniformly sustained.1576 An apartment house owner who complained that he was not allowed a ''fair return'' on the property was dismissed with the observation that ''a nation which can demand the lives of its men and women in the waging of . . . war is under no constitutional necessity of providing a system of price control . . . which will assure each landlord a 'fair return' on his property.''1577 The Court also held that rental ceilings could be established without a prior hearing when the exigencies of national security precluded the delay which would ensue.1578

But in another World War I case, the Court struck down a statute which penalized the making of ''any unjust or unreasonable rate or charge in handling . . . any necessaries''1579 as repugnant to the Fifth and Sixth Amendments in that it was so vague and indefinite that it denied due process and failed to give adequate notice of what acts would violate it.1580


Clauses 11, 12, 13, and 14. The Congress shall have power * * * ;

[Footnote 1397] The Federalist, No. 23 (J. Cooke ed. ed.: 1937), 146-151.

[Footnote 1398] Penhallow v. Doane, 3 U.S. (3 Dall.) 53 (1795).

[Footnote 1399] 17 U.S. (4 Wheat.) 316 (1819).

[Footnote 1400] Id., 407. (Emphasis supplied.)

[Footnote 1401] 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); and United States v. MacIntosh, 283 U.S. 605, 622 (1931).

[Footnote 1402] Cong. Globe, 37th Congress, 1st Sess., App. 1 (1861).

[Footnote 1403] Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 86 (1875).

[Footnote 1404] Northern Pac. Ry. Co. v. North Dakota, ex rel. Langer, 250 U.S. 135, 149 (1919).

[Footnote 1405] Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398 (1934).

[Footnote 1406] Northern Pac. Ry. Co. v. North Dakota, ex rel. Langer, 250 U.S. 135, 149 (1919).

[Footnote 1407] 299 U.S. 304 (1936).

[Footnote 1408] Id., 316, 318. On the controversy respecting Curtiss- Wright, see infra, Article II.

[Footnote 1409] 334 U.S. 742 (1948).

[Footnote 1410] Id., 757-758.

[Footnote 1411] Id., 755 n. 3.

[Footnote 1412] 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 313.

[Footnote 1413] Mr. Butler favored ''vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.'' Id., 318.

[Footnote 1414] Mr. Pinkney thought the House was too numerous for such deliberations but that the Senate would be more capable of a proper resolution and more acquainted with foreign affairs. Additionally, with the States equally represented in the Senate, the interests of all would be safeguarded. Ibid.

[Footnote 1415] Hamilton's plan provided that the President was ''to make war or peace, with the advice of the senate . . .'' 1 id., 300.

[Footnote 1416] 2 id., 318-319. In The Federalist, No. 69 (J. Cooke ed. 1961), 465, Hamilton notes: ''[T]he President is to be commander-in- chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,--all which, by the Constitution under consideration, would appertain to the legislature.'' (Emphasis in original). And see id., No. 26, 164-171. Cf. C. Berdahl, War Powers of the Executive in the United States (Urbana, Ill.: 1921), ch. V.

[Footnote 1417] The Federalist, No. 69 (J. Cooke ed. 1961), 464-465, 470. During the Convention, Gerry remarked that he ''never expected to hear in a republic a motion to empower the Executive alone to declare war.'' 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 318.

[Footnote 1418] The Articles of Confederation vested powers with regard to foreign relations in the Congress.

[Footnote 1419] 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 318-319.

[Footnote 1420] Jointly introducing the amendment to substitute ''declare'' for ''make,'' Madison and Gerry noted the change would ''leav[e] to the Executive the power to repel sudden attacks.'' Id., 318.

[Footnote 1421] Connecticut originally voted against the amendment to substitute ''declare'' for ''make'' but ''on the remark by Mr. King that 'make' war might be understood to 'conduct' it which was an Executive function, Mr. Ellsworth gave up his opposition, and the vote of Connecticut was changed. . . .'' Id., 319. The contemporary and subsequent judicial interpretation was to the understanding set out in the text. Cf. Talbot v. Seeman, 1 Cr. ( 5 U.S.), 1, 28 (1801) (Chief Justice Marshall: ''The whole powers of war being, by the Constitution of the United States, vested in congress, the acts of that body alone can be resorted to as our guides in this inquiry.''); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866).

[Footnote 1422] Messages and Papers of the Presidents, J. Richardson ed. (Washington: 1896), 326, 327.

[Footnote 1423] 7 Works of Alexander Hamilton, J. Hamilton ed. (New York: 1851), 746-747.

[Footnote 1424] 2 Stat. 129, 130 (1802) (emphasis supplied).

[Footnote 1425] Of course, Congress need not declare war in the all-out sense; it may provide for a limited war which, it may be, the 1802 statute recognized. Cf. Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800).

[Footnote 1426] The Prize Cases, 67 U.S. (2 Bl.) 635 (1863).

[Footnote 1427] 12 Stat. 326 (1861).

[Footnote 1428] The Prize Cases, 67 U.S. (2 Bl.) 635, 669 (1863).

[Footnote 1429] Id., 682.

[Footnote 1430] The Protector, 79 U.S. (12 Wall.) 700, 702 (1872).

[Footnote 1431] The controversy, not susceptible of definitive resolution in any event, was stilled for the moment, when in 1973 Congress set a cut-off date for United States military activities in Indochina, P.L. 93-52, 108, 87 Stat. 134, and subsequently, over the President's veto, Congress enacted the War Powers Resolution, providing a framework for the assertion of congressional and presidential powers in the use of military force. P.L. 93-148, 87 Stat. 555 (1973), 50 U.S.C. Sec. Sec. 1541-1548.

[Footnote 1432] In Atlee v. Richardson, 411 U.S. 911 (1973), aff'g. 347 F. Supp. 689 (E.D.Pa., 1982), the Court summarily affirmed a three-judge court's dismissal of a suit challenging the constitutionality of United States activities in Vietnam on political question grounds. The action constituted approval on the merits of the dismissal, but it did not necessarily approve the lower court's grounds. See also Massachusetts v. Laird, 400 U.S. 886 (1970); Holtzman v. Schlesinger, 414 U.S. 1304, 1316, 1321 (1973) (actions of individual justices on motions for stays). The Court simply denied certiorari in all cases on its discretionary docket.

[Footnote 1433] E.g., Velvel v. Johnson, 287 F. Supp. 846 (D.Kan. 1968), aff'd sub nom. Velvel v. Nixon, 415 F.2d 236 (10th Cir., 1969), cert. den., 396 U.S. 1042 (1970); Luftig v. McNamara, 252 F. Supp. 819 (D.D.C. 1966), aff'd 373 F.2d 664 (C.A.D.C. 1967), cert. den., 389 U.S. 945 (1968); Mora v. McNamara, 387 F.2d 862 (D.C.Cir., 1967), cert. den., 389 U.S. 934 (1968); Orlando v. Laird, 317 F. Supp. 1013 (E.D.N.Y. 1970), and Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970), consolidated and aff'd, 443 F.2d 1039 (2d Cir., 1971), cert. den., 404 U.S. 869 (1971); Massachusetts v. Laird, 451 F.2d 26 (1st Cir., 1971); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir., 1973) cert. den., 416 U.S. 936 (1974); Mitchell v. Laird, 488 F.2d 611 (D.C.Cir., 1973).

[Footnote 1435] W. Blackstone, Commentaries, St. G. Tucker ed. (Philadelphia: 1803), 263.

[Footnote 1436] 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1187.

[Footnote 1437] 25 Ops. Atty. Gen. 105, 108 (1904).

[Footnote 1438] 40 Ops. Atty. Gen. 555 (1948).

[Footnote 1439] Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox v. Wood, 247 U.S. 3 (1918).

[Footnote 1440] Id., 245 U.S., 385.

[Footnote 1441] Id., 386-388. The measure was upheld by a state court. Kneedler v. Lane, 45 Pa. St. 238 (1863).

[Footnote 1442] Act of May 18, 1917, 40 Stat. 76.

[Footnote 1443] Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918).

[Footnote 1444] Butler v. Perry, 240 U.S. 328, 333 (1916).

[Footnote 1445] 245 U.S. 366 (1918).

[Footnote 1446] Id., 390.

[Footnote 1447] Universal Military Training and Service Act of 1948, 62 Stat. 604, as amended, 50 U.S.C. App. Sec. Sec. 451-473. Actual conscription has been precluded as of July 1, 1973, P.L. 92-129, 85 Stat. 353, 50 U.S.C. App. Sec. 467(c), and registration was discontinued in 1975. Pres. Proc. No. 4360, 3 C.F.R. 462, 50 U.S.C. App. Sec. 453 note. Registration, but not conscription, was reactivated in the wake of the invasion of Afghanistan. P.L. 96-282, 94 Stat. 552 (1980).

[Footnote 1448] 391 U.S. 367 (1968).

[Footnote 1449] Id., 377, quoting Lichter v. United States, 334 U.S. 742, 756 (1948).

[Footnote 1450] Schlesinger v. Ballard, 419 U.S. 498, 510 (1975).

[Footnote 1451] Rostker v. Goldberg, 453 U.S. 57, 59 (1981). See id., 64- 65. And see Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984) (upholding denial of federal financial assistance under Title IV of the Higher Education Act to young men who fail to register for the draft).

[Footnote 1452] Parker v. Levy, 417 U.S. 733, 743-752 (1974). See also Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953); Schlesinger v. Councilman, 420 U.S. 738, 746-748 (1975); Greer v. Spock, 424 U.S. 828, 837-838 (1976); Middendorf v. Henry, 425 U.S. 25, 45-46 (1976); Brown v. Glines, 444 U.S. 348, 353-358 (1980); Rostker v. Goldberg, 453 U.S. 57, 64-68 (1981).

[Footnote 1453] Rostker v. Goldberg, 453 U.S. 57, 67 (1981).

[Footnote 1454] Id., 66. ''[P]erhaps in no other area has the Court accorded Congress greater deference.'' Id., 64-65. See also Gilligan v. Morgan, 413 U.S. 1, 10 (1973).

[Footnote 1455] Parker v. Levy, 417 U.S. 733, 758 (1974). ''[T]he tests and limitations [of the Constitution] to be applied may differ because of the military context.'' Rostker v. Goldberg, 453 U.S. 57, 67 (1981).

[Footnote 1456] Rostker v. Goldberg, 453 U.S. 57 (1981). Compare Frontiero v. Richardson, 411 U.S. 677 (1973), with Schlesinger v. Ballard, 419 U.S. 498 (1975).

[Footnote 1457] Greer v. Spock, 424 U.S. 828 (1976), limiting Flower v. United States, 407 U.S. 197 (1972).

[Footnote 1458] Brown v. Glines, 444 U.S. 348 (1980); Secretary of the Navy v. Huff, 444 U.S. 453 (1980). The statutory challenge was based on 10 U.S.C. Sec. 1034, which protects a serviceman's right to communicate with a Member of Congress, but which the Court interpreted narrowly.

[Footnote 1459] Parker v. Levy, 417 U.S. 733 (1974).

[Footnote 1460] Chappell v. Wallace, 462 U.S. 296 (1983) (enlisted men charging racial discrimination by their superiors in duty assignments and performance evaluations could not bring constitutional tort suits); United States v. Stanley, 483 U.S. 669 (1987) (officer who had been an unwitting, unconsenting subject of an Army experiment to test the effects of LSD on human subjects could not bring a constitutional tort for damages). These considerations are also the basis of the Court's construction of the Federal Tort Claims Act so that it does not reach injuries arising out of or in the course of military activity. Feres v. United States, 340 U.S. 135 (1950). In United States v. Johnson, 481 U.S. 681 (1987), four Justices urged reconsideration of Feres, but that has not occurred.

[Footnote 1461] United States v. Williams, 302 U.S. 46 (1937). See also In re Grimley, 137 U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 (1890).

[Footnote 1462] Wissner v. Wissner, 338 U.S. 655 (1950); Ridgway v. Ridgway, 454 U.S. 46 (1981). In the absence of express congressional language, like that found in Wissner, the Court nonetheless held that a state court division under its community property system of an officer's military retirement benefits conflicted with the federal program and could not stand. McCarty v. McCarty, 453 U.S. 210 (1981). See also Porter v. Aetna Casualty Co., 370 U.S. 159 (1962) (exemption from creditors' claims of disability benefits deposited by a veteran's guardian in a savings and loan association).

[Footnote 1463] Dameron v. Brodhead, 345 U.S. 322 (1953). See also California v. Buzard, 382 U.S. 386 (1966); Sullivan v. United States, 395 U.S. 169 (1969).

[Footnote 1464] McKinley v. United States, 249 U.S. 397 (1919).

[Footnote 1465] The Uniform Code of Military Justice of 1950, 64 Stat. 107, as amended by the Military Justice Act of 1968, 82 Stat. 1335, 10 U.S.C. Sec. 801 et seq. For prior acts, see 12 Stat. 736 (1863); 39 Stat. 650 (1916). See Loving v. United States, 116 S. Ct. 1737 (1996) (in context of the death penalty under the UCMJ).

[Footnote 1466] Compare Solorio v. United States, 483 U.S. 435, 441-447 (1987) (majority opinion), with id., 456-461 (dissenting opinion), and O'Callahan v. Parker, 395 U.S. 258, 268-272 (1969) (majority opinion), with id., 276-280 (Justice Harlan dissenting). See Duke & Vogel, ''The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction,'' 13 Vand. L. Rev. 435 (1960).

[Footnote 1467] 395 U.S. 258 (1969).

[Footnote 1468] Id., 273-274. See also Relford v. Commandant, 401 U.S. 355 (1971); Gosa v. Mayden, 413 U.S. 665 (1973).

[Footnote 1469] 483 U.S. 435 (1987).

[Footnote 1470] Id., 450-451.

[Footnote 1471] Id., 448. Although the Court of Military Appeals had affirmed Solorio's military-court conviction on the basis that the service-connection test had been met, the Court elected to reconsider and overrule O'Callahan altogether.

[Footnote 1472] Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 , 138-139 (1866); Ex parte Quirin, 317 U.S. 1, 40 (1942). The matter was raised but left unresolved in Middendorf v. Henry, 425 U.S. 25 (1976).

[Footnote 1473] See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. United States, 206 U.S. 333 (1907).

[Footnote 1474] United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244 (1960); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). This conclusion by the Court of Military Appeals is at least questioned and perhaps disapproved in Middendorf v. Henry, 425 U.S. 25, 43-48 (1976), in the course of overturning a CMA rule that counsel was required in summary court-martial. For the CMA's response to the holding see United States v. Booker, 5 M. J. 238 (C.M.A. 1977), rev'd in part on reh., 5 M. J. 246 (C.M.A. 1978).

[Footnote 1475] The UCMJ guarantees counsel, protection from self- incrimination and double jeopardy, and warnings of rights prior to interrogation, to name a few.

[Footnote 1476] Cf. O'Callahan v. Parker, 395 U.S. 258, 263-264 (1969).

[Footnote 1477] 10 U.S.C. Sec. 867.

[Footnote 1478] Parker v. Levy, 417 U.S. 733 (1974). Article 133 punishes a commissioned officer for ''conduct unbecoming an officer and gentleman,'' and Article 134 punishes any person subject to the Code for ''all disorders and neglects to the prejudice of good order and discipline in the armed forces.''

[Footnote 1479] Id., 756.

[Footnote 1480] Id., 757-761.

[Footnote 1481] Kurtz v. Moffitt, 115 U.S. 487 (1885); Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858). Judges of Article I courts do not have the independence conferred by security of tenure and of compensation.

[Footnote 1482] Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858).

[Footnote 1483] Military Justice Act of 1983, P.L. 98-209, 97 Stat. 1393, 28 U.S.C. Sec. 1259.

[Footnote 1484] Cf. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869); Ex parte Reed, 100 U.S. 13 (1879). While federal courts have jurisdiction to intervene in military court proceedings prior to judgment, as a matter of equity, following the standards applicable to federal court intervention in state criminal proceedings, they should act when the petitioner has not exhausted his military remedies only in extraordinary circumstances. Schlesinger v. Councilman, 420 U.S. 738 (1975).

[Footnote 1485] Ex parte Reed, 100 U.S. 13 (1879); Swaim v. United States, 165 U.S. 553 (1897); Carter v. Roberts, 177 U.S. 496 (1900); Hiatt v. Brown, 339 U.S. 103 (1950).

[Footnote 1486] 346 U.S. 137 (1953).

[Footnote 1487] Cf. Fowler v. Wilkinson, 353 U.S. 583 (1957); United States v. Augenblick, 393 U.S. 348, 350 n. 3, 351 (1969); Parker v. Levy, 417 U.S. 733 (1974); Secretary of the Navy v. Avrech, 418 U.S. 676 (1974).

[Footnote 1488] E.g., Calley v. Callaway, 519 F. 2d 184, 194-203 (5th Cir., 1975) (en banc), cert. den., 425 U.S. 911 (1976).

[Footnote 1489] United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). See also Lee v. Madigan, 358 U.S. 228 (1959).

[Footnote 1490] Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 351 U.S. 487 (1956

[Footnote 1491] Reid v. Covert, 354 U.S. 1 (1957) (voiding court-martial convictions of two women for murdering their soldier husbands stationed in Japan). Chief Justice Warren and Justices Black, Douglas, and Brennan were of the opinion Congress' power under clause 14 could not reach civilians. Justices Frankfurter and Harlan concurred, limited to capital cases. Justices Clark and Burton dissented.

[Footnote 1492] Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (voiding court-martial conviction for noncapital crime of wife of soldier husband overseas). The majority could see no reason for distinguishing between capital and noncapital crimes. Justices Harlan and Frankfurter dissented on the ground that in capital cases greater constitutional protection, available in civil courts, was required.

[Footnote 1493] Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960).

[Footnote 1494] 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1180.

[Footnote 1495] 297 U.S. 288 (1936).

[Footnote 1496] 39 Stat. 166 (1916).

[Footnote 1497] 297 U.S., 327-328.

[Footnote 1498] 60 Stat. 755 (1946), 42 U.S.C. Sec. 1801 et seq.

[Footnote 1499] 108(a), 70 Stat. 374, 378 (1956), 23 U.S.C. Sec. 101(b), naming the Interstate System the ''National System of Interstate and Defense Highways.''

[Footnote 1500] 72 Stat. 1580 (1958), as amended, codified to various sections of Titles 20 and 42.

[Footnote 1501] Universal Military Training and Service Act of 1948, 62 Stat. 604, as amended, 50 U.S.C. App. Sec. Sec. 451-473. Actual conscription has been precluded as of July 1, 1973, P. L. 92-129, 85 Stat. 353, 50 U. S. C. App. 467(c), although registration for possible conscription is in effect. P. L. 96-282, 94 Stat. 552 (1980).

[Footnote 1502] National Aeronautics and Space Act of 1958, 72 Stat. 426, as amended, codified in various sections of Titles 5, 18, and 50.

[Footnote 1503] Title II of the Defense Production Act Amendments of 1970, 84 Stat. 799, as amended, provided temporary authority for wage and price controls, a power which the President subsequently exercised. E.O. 11615, 36 Fed Reg. 15727 (August 16, 1971). Subsequent legislation expanded the President's authority. 85 Stat. 743, 12 U.S.C. Sec. 1904 note.

[Footnote 1504] Renogtiation Act of 1951, 65 Stat. 7, as amended, 50 U.S.C. App. Sec. 1211 et seq.

[Footnote 1505] E.g., Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961); Peters v. Hobby, 349 U.S. 331 (1955).

[Footnote 1506] Zemel v. Rusk, 381 U.S. 1 (1965); United States v. Laub, 385 U.S. 475 (1967).

[Footnote 1507] United States v. Robel, 389 U.S. 258 (1967); United States v. Brown, 381 U.S. 437 (1965).

[Footnote 1508] Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 507 (1871) (sustaining a congressional deduction from a statute of limitations the period during which the Civil War prevented the bringing of an action). See also Mayfield v. Richards, 115 U.S. 137 (1885).

[Footnote 1509] 251 U.S. 146 (1919). See also Ruppert v. Caffey, 251 U.S. 264 (1920).

[Footnote 1510] Act of November 21, 1918, 40 Stat. 1046.

[Footnote 1511] 251 U.S., 163.

[Footnote 1512] Block v. Hirsh, 256 U.S. 135 (1921).

[Footnote 1513] Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924).

[Footnote 1514] Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948). See also Fleming Mohawk Wrecking Co., 331 U.S. 111 (1947).

[Footnote 1515] Id., 333 U.S., 143-144.

[Footnote 1516] Ludecke v. Watkins, 335 U.S. 160 (1948).

[Footnote 1517] Id., 170.

[Footnote 1518] Lichter v. United States, 334 U.S. 742, 779 (1948).

[Footnote 1519] For an extensive consideration of this subject in the context of the President's redelegation of it, see N. Grundstein, Presidential Delegation of Authority in Wartime (Pittsburgh: 1961).

[Footnote 1520] In the Selective Draft Law Cases, 245 U.S. 366, 389 (1918), the objection was dismissed without discussion. The issue was decided by reference to peacetime precedents in Yakus v. United States, 321 U.S. 414, 424 (1944).

[Footnote 1521] 88 U.S. (21 Wall.) 73 (1875).

[Footnote 1522] Id., 96-97. Cf. United States v. Chemical Foundation, 272 U.S. 1 (1926).

[Footnote 1523] 320 U.S. 81 (1943).

[Footnote 1524] Id., 91-92, 104.

[Footnote 1525] Id., 104.

[Footnote 1526] 334 U.S. 742 (1948).

[Footnote 1527] Id., 778-779, 782.

[Footnote 1528] Id., 778-783.

[Footnote 1529] 71 U.S. (4 Wall.) 2 (1866).

[Footnote 1530] Id., 127.

[Footnote 1531] Id., 132, 138.

[Footnote 1532] Id., 121, 139-142.

[Footnote 1533] 327 U.S. 304 (1946).

[Footnote 1534] New Orleans v. The Steamship Co., 87 U.S. (20 Wall.) 387 (1874); Santiago v. Nogueras, 214 U.S. 260 (1909); Madsen v. Kinsella, 343 U.S. 341 (1952).

[Footnote 1535] 100 U.S. 158, 170 (1880).

[Footnote 1536] De Lima v. Bidwell, 182 U.S. 1 (1901); Dooley v. United States, 182 U.S. 222 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138 (1904).

[Footnote 1537] 354 U.S. 1 (1957).

[Footnote 1538] Id., 6, 7.

[Footnote 1539] For a comprehensive treatment, preceding Reid v. Covert, of the matter in the context of the post-War war crimes trials, see Fairman, Some New Problems of the Constitution Following the Flag, 1 Stan. L. Rev. 587 (1949).

[Footnote 1540] 12 U.S. (8 Cr.) 110 (1814). See also Conrad v. Waples, 96 U.S. 279 (1878).

[Footnote 1541] Miller v. United States, 78 U.S. (11 Wall.) 268 (1871); Steehr v. Wallace, 255 U.S. 239 (1921); Central Trust Co. v. Garvan, 254 U.S. 554 (1921); United States v. Chemical Foundation, 272 U.S. 1 (1926); Silesian-American Corp. v. Clark, 332 U.S. 469 (1947); Cities Service Co. v. McGrath, 342 U.S. 330 (1952); Handelsbureau La Mola v. Kennedy, 370 U.S. 940 (1962); cf. Honda v. Clark, 386 U.S. 484 (1967).

[Footnote 1542] The Siren, 80 U.S. (13 Wall.) 389 (1871).

[Footnote 1543] The Hampton, 72 U.S. (5 Wall.) 372, 376 (1867).

[Footnote 1544] The Paquete Habana, 175 U.S. 677, 700, 711 (1900).

[Footnote 1545] Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 -121 (1866).

[Footnote 1546] ''During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which were happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.'' Id., 109 (emphasis by Court).

[Footnote 1547] Schneck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Surgarman v. United States, 249 U.S. 182 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Abrams v. United States, 250 U.S. 616 (1919).

[Footnote 1548] 40 Stat. 217 (1917), as amended by 40 Stat. 553 (1918).

[Footnote 1549] Gilbert v. Minnesota, 254 U.S. 325 (1920).

[Footnote 1550] Schenck v. United States, 249 U.S. 47, 52 (1919).

[Footnote 1551] Hirabayashi v. United States, 320 U.S. 81 (1943).

[Footnote 1552] Korematsu v. United States, 323 U.S. 214 (1944).

[Footnote 1553] Ex parte Endo, 323 U.S. 283 (1944).

[Footnote 1554] E.g., Dennis v. United States, 341 U.S. 494 (1951); Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961); American Communications Association v. Douds, 339 U.S. 382 (1950).

[Footnote 1555] E.g., Yates v. United States, 354 U.S. 298 (1957); Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965); United States v. Brown, 381 U.S. 437 (1965).

[Footnote 1556] United States v. Robel, 389 U.S. 258 (1967); cf. Aptheker v. Secretary of State, 378 U.S. 500 (1964). And see Schneider v. Smith, 390 U.S. 17 (1968).

[Footnote 1557] Sec. 5(a)(1)(D) of the Subversive Control Act of 1950, 64 Stat 992, 50 U.S.C. Sec. 784(a)(1)(D).

[Footnote 1558] Id., 389 U.S., 264-266. Justices Harlan and White dissented, contending that the right of association should have been balanced against the public interest and finding the weight of the latter the greater. Id., 282.

[Footnote 1559] 403 U.S. 713 (1971).

[Footnote 1560] The result in the case was reached by a six-to-three majority. The three dissenters, Chief Justice Burger, id., 748, Justice Harlan, id., 752, and Justice Blackmun, id., 759, would have granted an injunction in the case; Justices Stewart and White, id., 727, 730, would not in that case but could conceive of cases in which they would.

[Footnote 1561] 1 Stat. 577 (1798).

[Footnote 1562] 6 Writing of James Madison, G. Hunt ed. (New York: 1904), 360-361.

[Footnote 1563] 40 Stat. 531 (1918), 50 U.S.C. Sec. 21.

[Footnote 1564] 335 U.S. 160 (1948).

[Footnote 1565] Ex parte Quirin, 317 U.S. 1 (1942).

[Footnote 1566] Mitchell v. Harmony, 54 U.S. (13 How.) 115, 134 (1852).

[Footnote 1567] 80 U.S. (13 Wall.) 623, 627 (1871).

[Footnote 1568] 120 U.S. 227 (1887).

[Footnote 1569] Id., 239.

[Footnote 1570] H.R. Rept. No. 262, 43d Cong., 1st Sess. (1874), 39-40.

[Footnote 1571] United States v. Commodities Trading Corp., 339 U.S. 121 (1950); United States v. Toronto Nav. Co., 338 U.S. 396 (1949); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949); United States v. Cors, 337 U.S. 325 (1949); United States v. Felin & Co., 334 U.S. 624 (1948); United States v. Petty Motor Co., 327 U.S. 372 (1946); United States v. General Motors Corp., 323 U.S. 373 (1945).

[Footnote 1572] United States v. Caltex, Inc., 344 U.S. 149, 154 (1952). Justices Douglas and Black dissented.

[Footnote 1573] Block v. Hirsh, 256 U.S. 135 (1921).

[Footnote 1574] But quaere in the light of Nebbia v. New York, 291 U.S. 502 (1934), Olsen v. Nebraska ex rel. Western Reference and Bond Association, 313 U.S. 236 (1941), and their progeny.

[Footnote 1575] Block v. Hirsh, 256 U.S. 135, 156 (1921).

[Footnote 1576] Yakus v. United States, 321 U.S. 414 (1944); Bowles v. Willingham, 321 U.S. 503 (1944); Lockerty v. Phillips, 319 U.S. 182 (1943); Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947); Lichter v. United States, 334 U.S. 742 (1948).

[Footnote 1577] Bowles v. Willingham, 321 U.S. 503, 519 (1944).

[Footnote 1578] Id., 521. The Court stressed, however, that Congress had provided for judicial review after the regulations and orders were made effective.

[Footnote 1579] Act of October 22, 1919, 2, 41 Stat. 297.

[Footnote 1580] United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921).

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