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ArtI.S8.C11.1.2 Breadth of Congressional War Powers
ArtI.S8.C11.1.1 Overview of Congressional War Powers
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; . . .
When the Constitution’s Framers gathered in Philadelphia to draft the Constitution, one of their principal objectives was to improve the United States’ ability to ensure its peace and security through military protection.
1 In line with that aim, the Preamble makes securing the common defense one of the Constitution’s principle purposes,
2 and the articles that follow allocate broad control over national security to the federal government while denying most war powers to the states.
3
Although courts and commentators occasionally discuss the war power as if it were a unified authority,
4 the Supreme Court has explained that the Constitution spells out the war powers not in a single, simple phrase, but in many broad, interrelated provisions.
5 In Article I, the Constitution empowers Congress to provide for the common defense through a set of enumerated authorities concerning war and national security.
6 Central among these powers is Clause 11 of Article I, Section 8, which authorizes Congress to declare war. Clause 11 also empowers Congress to issue letters of marque and reprisal, which are instruments that permit private citizens to capture or destroy enemy property, and permits Congress to authorize rules concerning captures of enemy property on land or at sea.
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Apart from Clause 11, other clauses in Article I, Section 8, grant Congress the power to define and punish offenses against the law of nations; raise and support armies; establish and maintain a navy; make rules for the armed forces; provide for calling forth the Militia; and provide for organizing, arming, and disciplining, the Militia, and for governing the militia when in the service of the United States.
8 General congressional authorities, such as the power over appropriations
9 and the Necessary and Proper Clause, supplement Congress’s enumerated war powers. Finally, the Supreme Court has sometimes stated that the United States possesses inherent war powers that derive from its role as a
10 sovereign country rather than from an affirmative grant in the Constitution.
11 Other times, however, the Court has expressed the view that the federal governments’ war powers, while expansive, are only those which are to be derived from the Constitution . . . .
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