Constitutional Law I
War & Treaty Powers
March 10, 2005
Constitutional War Powers
Art. I, § 8: The Congress shall have power:
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to pay the debts and provide for the common defence
To declare war, grant letters of marque and reprisal, and make rules
concerning captures on land and water;
To raise and support armies ... To provide and maintain a navy;
To make rules for the government and regulation of the land and
naval forces;
To provide for calling forth the militia to execute the laws of the
union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia.
Art. II, § 2:
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The president shall be commander in chief of the army and navy of
the United States, and of the militia of the several States, when
called into the actual service of the United States;
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Other Sources of War Power
Pre-constitutional
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Colonial Period
 Continental Congress... exercised the powers of war and
peace and finally adopted the Declaration of Independence.
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Revolutionary Period
 Congress conducted all military operations
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Articles of Confederation
 Article IX. The United States in Congress assembled, shall
have the sole and exclusive right and power of determining
on peace and war...--of sending and receiving ambassadors
-- entering into treaties and alliances ...
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War Power inheres in Sovereignty
Extra-constitutional
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“the power to declare and carry on war are incidents
of national sovereignty” Downes v. Bidwell (1901)
“the power to declare and carry on war are incidents
of ... national sovereignty, and belong to all independent governments; [they do not] depend upon
[any] affirmative grant 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.” US v. Curtiss-Wright (1936)
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Wood v. Miller
(1948)
Does War Power authorize rent control?
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Does necessary & proper clause apply?
 Demobilization of veterans, war-created scarcity
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Even if not valid under commerce clause?
 E.G. could congress regulate gun possession under
War Power (notwithstanding Lopez)?
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Wood v. Miller
(1948)
When can cong’s War Power be exercised?
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Court defers on when war conditions end
 Jackson (concurring): “I cannot accept the argument
that war powers last as long as the effects and
consequences of war, for if so they are permanent -as permanent as the war debts.”
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Federalism Limits on War Power
None: No Reserved Powers in States
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"That [the doctrine of enumerated powers] applies
only to powers which the states had is self-evident.
And since the states severally never possessed
international powers, such powers could not have
been carved from the mass of state powers but
obviously were transmitted to the United States
from some other source” Curtiss-Wright
Separation of Powers
Individual Rights
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War Power of States
Constitution: None
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Exception: Art. I, § 10, ¶ 3: States may “engage
in War [if] actually invaded, or in such imminent
Danger as will not admit of delay."
Pre-constitutional: None
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"The states were not 'sovereigns' in the sense
contended for by some. They did not possess the
peculiar features of sovereignty, -- they could not
make war, nor peace, nor alliances, nor treaties.
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Treaty Power
Missouri v. Holland (1920)
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Migratory Bird Act unconst’l (district court)
 Exceeds Congress’ interstate commerce power
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Migratory Bird Treaty (US-GB)
 agreed the 2 countries would propose to their
lawmaking bodies the necessary measures for
carrying the treaty out
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Migratory Bird Treaty Act
 Does “necessary & proper” clause apply?
Treaties are independent source of power
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Federalism concerns?
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Missouri v. Holland
(1920)
Holmes:
“The case before us must be considered in the
light of our whole experience, and not merely
in that of what was said a hundred years ago.
The treaty in question does not contravene any
prohibitory words to be found in the
Constitution. The only question is whether it is
forbidden by some invisible radiation from the
general terms of the 10th Amd. We must
consider what this country has become in
deciding what that Amendment has reserved.”
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Foreign Affairs Power of States
Constitution: None
As attribute of sovereignty: None
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“Power over external affairs is not shared by the States; it is
vested in the national government exclusively.” US v. Pink
(1942)
"For local interests the several States of the Union exist, but
for national purposes, embracing our relations with foreign
nations, we are but one people, one nation, one power.”
Chinese Exclusion Cases (1889)
"In respect of all international negotiations and compacts,
and in respect of our foreign relations generally, state lines
disappear. As to such purposes the State of New York
does not exist." US v. Belmont (1937)
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Validity of Treaties
As a matter of international law
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Treaties must conform to international law
 UN Charter; Geneva Convention on Treaties
As a matter of constitutional law
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Must follow prescribed form
Must be proper subject of international relations
 Is the answer conclusively yes once another nation
entreaties with the US?
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Explicit constitutional restrictions
 Bill of Rights?
 Article V (changing state boundaries)?
 10th Amendment?
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Validity & Effect of Treaties
Constitutional limits
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Bicker Amendment:
 10th Am: no separate limitation on congress
 Bill of Rights: these do limit congress
Two classes of federal power
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External Effects
 Int’l (not const’l) law governs relation of nations
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Internal Effects
 Treaties typically not self-executing as domestic law
 Usually followed by ordinary domestic legislation
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E.g., Migratory Bird Treaty Act
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Other Powers
Section 8
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Naturalization (and immigration)
 Chinese Exclusion Cases: Plenary powers doctrine
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Intellectual Property
 Eldred v. Ashcroft: Congress extends copyright term
to 100+ years – Court defers on “limited time”
Art. IV, § 3, ¶ 2 (Property Clause)
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Congress has plenary power over US property
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