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; . . .

The United States declared war against Spain in April 1898 following a Cuban insurrection against Spanish rule and the sinking of the USS Maine in the harbor outside Havana.1 Similar to the declarations of war in the War of 18122 and the Mexican War,3 Congress’s declaration of war in the Spanish American War authorized the President to “use the entire land and naval forces of the United States” to prosecute the war effort.4 Like those prior declared wars, and in contrast to the 20th century conflicts that would follow, the Spanish American War did not require nation-wide mobilization of personnel and economic resources and was fought with U.S. volunteer and militia forces rather than through broad national conscription.5

The Spanish American War did not give rise to Supreme Court decisions addressing the meaning of the Declare War Clause, but it did lead to other constitutional questions, such as how the Constitution would apply to territories that the United States acquired from Spain at the close of the war, including Guam, Puerto Rico, and the Philippines.6 Other elements of the war and its aftermath, such as the U.S. acquisition of a long-term land lease at Guantanamo Bay, Cuba, and interrogation techniques in American-annexed Philippines, would set the stage for later Supreme Court cases in the post-September 11, 2001 era.7

In World War I, Congress made two declarations of war: first against Germany in April 1917 and then against Austria-Hungary in December 1917.8 In these declarations, Congress pledged “all resources of the country” necessary to bring the conflict to a successful conclusion. This marked an expansion beyond earlier war declarations,9 which authorized the President to use land, naval, and military forces, but did not reference other domestic resources. Consistent with the new language, the First World War engaged far more of the nation’s resources and led to Supreme Court decisions challenging elements of the U.S. war effort.10

In line with the view that the United States must marshal nationwide resources to achieve victory, Congress passed a set of economic mobilization statutes that gave the President the authority to take control of private property for public use during the World War I.11 Exercising statutory delegations, the Wilson Administration assumed control of many elements of the domestic economy, including privately owned transportation networks12 and communications systems13 inside the United States.14 In response to legal challenges to the President’s seizure of railroads and telephone lines, the Supreme Court upheld the constitutionality of the statutory delegations, emphasizing the “completeness” of Congress’s war powers.15 The Supreme Court also upheld other wartime economic authorizations, including a statutory delegation to the President to regulate sale of enemy properties,16 war-related rent control requirements in the District of Columbia,17 and a wartime prohibition on trafficking in liquor, which the Court described as a “an appropriate means of increasing our war efficiency.” 18 The Court also held that Congress had constitutional power to enact a nationwide compulsory draft law.19

Congress’s power to direct the President to use “all resources of the country” in prosecuting World War I appears to have informed the Supreme Court’s reasoning regarding federal power to respond to the economic emergency created by the Great Depression. In Home Bldg. & Loan Ass’n v. Blaisdell, which addressed the constitutionality of a Minnesota debtor relief statute, the Supreme Court likened the emergency created by period of economic distress to a wartime emergency.20 As part of this analogy, Chief Justice Charles Evans Hughes stated in his opinion for the Court that the “war power of the federal government . . . is a power to wage war suc[c]essfully, and thus it permits the harnessing of the entire energies of the people in a supreme co-operative effort to preserve the nation.” 21

Footnotes

1

Act of April 25, 1898, Pub. L. No. 55-69, 30 Stat. 364. See also The Spanish American War, >https://sfo7pqxlo0.proxynodejs.usequeue.com/milestones/1866-1898/spanish-american-war (last visited Sept. 10, 2024).

2

Act of June 18, 1812, 2 Stat 755 (authorizing the President to “use the whole land and naval force of the United States” and to issue letters of marque and reprisal).

3

Act of May 13, 1846, 9 Stat. 9 ( “The President be, and he is hereby, authorized to employ the militia, naval, and military forces of the United States, and to call for and accept the services of any number of volunteers.” ).

4

Act of April 25, 1898, Pub. L. No. 55-69, 30 Stat. 364 ( “The President of the United States . . . is . . . empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this Act into effect.” ).

5

See generally 1 Am. Mil. Hist., The U.S. Army and the Forging of a Nation, 1775–1917, at 131–94, 347–60 (2009), .

6

The acquisition of new U.S. territories led a set of cases collectively known as the Insular Cases, which address the extent to which individual rights guaranteed in the Constitution apply to inhabitants of the territories. For background on the Insular Cases and current jurisprudence on the territories, see .

7

After the Spanish-American War and Cuban independence in 1902, the United States acquired a long-term land lease for three parcels in Guantanamo Bay, Cuba. See Jennifer K. Elsea, Cong. Rsch. Serv., R44137, Naval Station Guantanamo Bay: History and Legal Issues Regarding its Lease Agreements 3–4 (2022), >https://dlwdew2ydb.proxynodejs.usequeue.com/product/pdf/R/R44137. United States’ detention operations at Guantanamo Bay after the attacks of September 11, 2001 led to several constitutional questions concerning the President’s detention authority, which were addressed by the Supreme Court. See . Legal issues concerning detainee interrogation methods in the Philippines, including a method called “water cure,” also arose after the Spanish-American War. See S. Doc. No. 57-213, at 18–29 (1903).

8

See Act of April 6, 1917, 40 Stat. 1; Act of Dec. 7, 1917, 40 Stat. 429.

9

See Act of June 18, 1812, 2 Stat 755 (War of 1812); Act of April 25, 1898, Pub. L. No. 55-69, 30 Stat. 364 (Spanish-American War). See also Act of May 13, 1846, 9 Stat. 9 (Mexican War) ( “The President be, and he is hereby, authorized to employ the militia, naval, and military forces of the United States, and to call for and accept the services of any number of volunteers.” ).

10

Congress’s declaration of war against Austria-Hungary is also unique in that it is the only war 20th century war declaration that does not characterize the state of war as having been “thrust upon the United States.” See Act of Dec. 7, 1917, 40 Stat. 429.

11

See Reuben Clark, Emergency Legislation Passed Prior to December, 1917: Dealing with the Control and Taking of Private Property for the Public Use, Benefit, or Welfare (Washington, DC: GPO, 1918); Christopher A. Casey and Jennifer K. Elsea, Cong. Rsch. Serv., R45618, The International Emergency Economic Powers Act: Origins, Evolution, and Use 2–3 (Jan. 30, 2024), >https://dlwdew2ydb.proxynodejs.usequeue.com/product/pdf/r/r45618.

12

Act of August 29, 1916, Pub. L. No. 64-242 art. 112, 39 Stat. 619, 645 (authorizing the President, through the Secretary of War, “to take possession and assume control of any system or systems of transportation” ).

13

Joint Resolution of July 16, 1918, 40 Stat. 904 (1918) (permitting the President “to take possession and assume control of any telegraph, telephone, marine cable, or radio system or systems” ). See also Matthew C. Waxman, The Power to Wage War Successfully, 117 Colum. L. Rev. 613, 651 & n.214 (2017) (discussing World War I economic mobilization statutes); Edward S. Corwin, Total War and the Constitution 39 (1947) (outlining World War I era congressional delegations of power).

14

See Dakota Cent. Tel. Co. v. South Dakota, 250 U.S. 163, 183–88 (1919); N. Pac. Ry. Co. v. North Dakota ex rel. Langer, 250 U.S. 135, 149–52 (1919).

15

See Dakota Cent. Tel. Co., 250 U.S. at 183 ( “[T]he completeness of the war power under which the authority was exerted and by which completeness its exercise is to be tested suffices, we think, to dispose of the many other contentions urged as to the want of power in Congress to confer upon the President the authority which it gave him.” ); N. Pac. Ry. Co., 250 U.S. at 149 ( “The complete and undivided character of the war power of the United States is not disputable.” ).

16

United States v. Chem. Found., 272 U.S. 1, 11–12 (1926) (interpreting the Trading with the Enemy Act). For additional background on the Trading with the Enemy Act, see CRS Report R45618, supra note 11, at 2–6.

17

Block v. Hirsh, 256 U.S. 135, 154–58 (1921).

18

Hamilton v. Ky. Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919). Another World War I era statute, the Food and Fuel Control Act (also known as the Lever Act) gave the President broad power to regulate and ensure an adequate supply of domestic food and fuel production. Pub. L. No. 65-41 § 1, 40 Stat. 276 (1917). The Supreme Court held that executive branch regulations promulgated under this statute were unconstitutionally vague, leading the Court to strike down criminal convictions based on those regulations. In doing so, the Court did not suggest Congress lacked the power to authorize wartime food pricing restrictions. See United States v. L. Cohen Grocery Co., 255 U.S. 81, 92–93 (1921). For background on the void for vagueness doctrine, see .

19

Selective Draft Law Cases, 245 U.S. 366, 378 (1917).

20

See Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 426 (1934). For further discussion of the Blaisdell decision, see .

21

290 U.S. at 426. Chief Justice Hughes’ description echoes a 1917 speech he gave to the American Bar Association in which he stated that the United States has a “[t]he power to wage war is the power to wage war successfully.” Hon. Charles E. Hughes, War Powers Under the Constitution, Address Before the American Bar Association at its Annual Meeting Held at Saratoga N.Y. on September 4, 5, and 6, 1917, reprinted in S. Doc. No. 65-105, at 7 (1st Sess. 1917). The Supreme Court would cite Hughes’ speech at length in later cases. See Lichter v. United States, 334 U.S. 742, 757 n.4, 767 n.9, 779 n.31, 780–82 (1948); Hirabayashi v. United States, 320 U.S. 81, 93 (1943).