The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
History
The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
Constitutional law -- United States; Constitutions -- United States
Thereafter we find the phrase, "the war power," being used by both Chief
Justice White[1210] and Chief Justice Hughes,[1211] the former declaring
the power to be "complete and undivided."[1212] 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._ Curtiss-Wright
Export Corp.,[1213] 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
Continental 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."[1214]
A COMPLEXUS OF GRANTED POWERS
In the more recent case of Lichter _v._ United States,[1215] 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."[1216] 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, * * *"[1217]
A DECLARATION OF WAR, WHEN REQUIRED
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