Constitutional Power to Raise an Army

Wary of giving the President as Commander in Chief of the armed forces too much power over the military, the Constitution gives war powers to Congress. Congress is given the power to raise and fund armies. Despite being given these powers, Congress did not actually establish an army of the United States until 1789, one year after the Constitution was ratified. Congress also has power over military budgets which can only last for two years before they must be approved again.

What the Constitution Says About Raising Armies

[The Congress shall have Power . . . ] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; . . .

Does Congress Have the Power to Raise an Army?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The clauses of the Constitution which give Congress authority to raise and support armies 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.¹ Aware historically that these powers had been used 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.²

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. . . ."³ 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."⁴

Conscription

The constitutions adopted during the Revolutionary War by at least nine of the States sanctioned compulsory military service.⁵ 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.⁶ In 1863, a compulsory draft law was adopted and put into operation without being challenged in the federal courts.⁷ Not so the Selective Service Act of 1917.⁸ 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 Constitution, 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.⁹

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."¹⁰ Accordingly, in the Selective Draft Law Cases,¹¹ it dismissed the objection under that amendment as a contention that was "refuted by its mere statement."¹²

Although the Supreme Court has so far formally declined to pass on the question of the "peacetime" draft,¹³ its opinions leave no doubt of the constitutional validity of the act. In United States v. O'Brien,¹⁴ upholding a statute prohibiting the destruction of selective service registration certificates, the Court, speaking through Chief Justice Warren, thought "[t]he power of Congress to classify and conscript manpower for military service is `beyond question.'"¹⁵ In noting Congress's "broad constitutional power" to raise and regulate armies and navies,¹⁶ the Court has specifically observed that the conscription act was passed "pursuant to" the grant of authority to Congress in clauses 12-14.¹⁷

Footnotes:

1. W. Blackstone, Commentaries 263 (St. G. Tucker ed., 1803).
2. 3 J. Story, Commentaries on the Constitution of the United States 1187 (1833).
3. 25 Ops. Atty. Gen. 105, 108 (1904).
4. 40 Ops. Atty. Gen. 555 (1948).
5. Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox v. Wood, 247 U.S. 3 (1918).
6. 245 U.S. at 385.
7. 245 U.S. at 386–88. The measure was upheld by a state court. Kneedler v. Lane, 45 Pa. St. 238 (1863).
8. Act of May 18, 1917, 40 Stat. 76.
9. Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918).
10. Butler v. Perry, 240 U.S. 328, 333 (1916) (upholding state law requiring able-bodied men to work on the roads).
11. 245 U.S. 366 (1918).
12. 245 U.S. at 390.
13. Universal Military Training and Service Act of 1948, 62 Stat. 604, as amended, 50 U.S.C. App. §§ 451-473. Actual conscription was precluded as of July 1, 1973, Pub. L. No. 92-129, 85 Stat. 353, 50 U.S.C. App. § 467(c), and registration was discontinued on March 29, 1975. Pres. Proc. No. 4360, 3 C.F.R. 462 (1971-1975 Compilation), 50 U.S.C. App. § 453 note. Registration, but not conscription, was reactivated in the wake of the invasion of Afghanistan. Pub. L. No. 96-282, 94 Stat. 552 (1980).
14. 391 U.S. 367 (1968).
15. 391 U.S. at 377, quoting Lichter v. United States, 334 U.S. 742, 756 (1948).
16. Schlesinger v. Ballard, 419 U.S. 498, 510 (1975).
17. Rostker v. Goldberg, 453 U.S. 57, 59 (1981). See id. at 64–65. See also 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).