The Sweeping Domestic War Powers of Congress

With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented federal legislative power to prevail in domestic wars. The "Sweeping Clause" grants Congress far-reaching authority to carry federal powers - legislative, executive, and judicial - into execution. Using this authority, Congress may suspend the ordinary forms of government and some civil liberties as a means of implementing federal powers. For example, Congress may suspend the privilege of the writ of habeas corpus or authorize military trial of civilians if it supposes that such measures will help ensure that federal authority extends throughout the United States. Hence Congress has something of a domestic wartime power that permits it to enact laws meant to defeat rebels and invaders and thereby ensure the continuity of the Constitution and the federal and state governments that sustain it.[C]ertain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them- in other words, that the constitution is not in it's [sic] application in all respects the same, in cases of Rebellion or invasion . . . as it is in times of profound peace and public security.- Abraham Lincoln1IntroductionFrom time to time, Americans (Supreme Court justices included) have insisted that the Constitution is not a suicide pact.2 Undoubtedly it is not. While the Founders were not starry-eyed statesmen and must have known that all regimes eventually expire, they surely did not suppose that the regime they erected would quickly meet the fate of the "perpetual" Articles of Confederation.3 Those who made the Constitution law erected a "more perfect Union,"4 one that was meant to "endure for ages."5 The difficulty lies in discerning which of the charter's features were meant to help it outlast emergencies. After all, a cursory reading of the Constitution intimates extremely limited federal emergency authority. As Justice Jackson noted, the Constitution lacks anything resembling Article 48 of the Weimar Republic;6 it never expressly authorizes a raft of crisis measures, much less suspension of the Constitution.7 Though the federal government can declare war,8 the subsidiary powers that come immediately to mind - authorizing war and commanding the use of force9 - do not seem to imply that Congress enjoys a broad wartime power. Two provisions in Article I mention invasions and rebellions, namely the Habeas and Militia Clauses.10 But the former limits federal power, rather than granting authority that becomes available during invasions or rebellions.11 And while the latter clause grants power, it does no more than authorize the federal government to summon the militias to thwart invaders and rebels.12 Finally, though the Guarantee Clause obliges the federal government to defend the states against invasion and "domestic Violence,"13 it conveys no power to counter invasions or rebellions.14Hence we know with certainty that the federal government can use the militia to suppress invasions and rebellions and that the national regime has duties to the states with respect to both. Furthermore, despite the absence of any explicit power to suspend the privilege of the writ, there is an unshakable sense that the federal government may suspend that liberty. …