Military Rulemaking – Constitution Article 1 §8.14

Article 1 §8.14 of the Constitution is about Congress’ rulemaking power for military forces. It’s one of several clauses collectively referred to as “The War Power,” which is a pretty big deal.

Another big deal? Democracy. It seems boring until it falls apart. That’s why I’m studying the Constitution, one clause at a time. I’m up to Article 1 §8.14.

Article 1 §8.14

This is the last clause in a cluster (1 §8.11-14) collectively known as “The War Power.” This is obviously because they all deal with Congress’ role in war. Clause 14 says Congress has the power:

To make Rules for the Government and Regulation of the land and naval Forces;

When I look at my Annotated Constitution, The War Power Clauses are grouped and discussed together. The first three clauses are pretty straightforward and it’s easy to see which topics of discussion relate to them: declaring war, raise and maintaining armies and a navy. I guess everything else falls under rulemaking. Chief among these topics are war legislation and Constitutional rights during wartime.

War Legislation During Peacetime

The bumper sticker wisdom that you “cannot simultaneously prevent and prepare for war” may hold some truth. But most people would agree that “just in case” holds some weight when you don’t want any rando nation to be able to walk in and take over. But making rules to govern and regulate the forces has been interpreted way more broadly than appropriating funds for a standing army. It has even gone beyond the establishment of military courts and their related civil rights muddle.

This clause is responsible for the National Defense Act of 1916. This established the National Guard as the nation’s permanent reserve force (thanks to Pancho Villa). It also allowed the government to build the Wilson hydropower dam across the Tennessee River. It was challenged as unconstitutional in Ashwander v. Tennessee Valley Authority. The court upheld the constitutionality of the project under the War Power clauses, because such facilities are “national defense assets” necessary for the production of munitions.

“Regulation of interstate commerce” could justify many of the activities authorized under the War Powers. But using “national defense” seems to be the preferred justification for a lot of what our government does. The Atomic Energy Act of 1946 established a body to oversee atomic energy development for both military and civil purposes. Likewise, highway construction is of “primary importance to the national defense.” Even the first federal financial aid program was part of the National Defense Education Act.

War Legislation During War

Congress has tried to hang on to its right to declare war (with limited success) but once war has begun, Congress seems pretty happy to hand over power to the president. Delegating power to the president during wartime is legally sketchy. But what with the pressures of war, it isn’t challenged as much as you’d expect, and not always successfully. In Hirabayashi v. United States the court upheld a race-based curfew as “as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage.”

The power [of delegation] is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to methods 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.

 Constitutional Rights During Wartime

Allowing for military courts in parallel with the civil justice system, boundaries between the two systems must be defined. Martial law rules in conquered territory while the war lasts. Dow v. Johnson established the precedent by upholding the proclamation of General Butler upon the occupation of New Orleans during the Civil War:

all disorders, disturbances of the peace, and crimes of an aggravated nature interfering with the forces or laws of the United States would “be referred to a military court for trial and punishment;

However, there are protections for civilians in the United States. Thanks to Ex parte Milligan, civilians outside of a war zone are not subject to military jurisdiction, even during wartime. Duncan v. Kahanamoku determined that a declaration of martial law (as was made in Hawaii after the Pearl Harbor attack) did not nullify the civilian court system. Even during a period of martial law the military does not have power to supplant replace civilian laws and trials of civilians not charged with violations war-related laws.

The Take-Home Message

I’m going to close with a quote from Ex parte Milligan, because I think it is excellent. I wish more people had read it when we were rolling back civil rights after 9/11. But since we seem to be all-too-willing to disregard our principles whenever there’s an emergency, it’s still valuable today:

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.